UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  STATUTORY  LAW 

OF 

DECEDENTS'  ESTATES 
IN  PENNSYLVANIA 

WITH  ANNOTATIONS  AND  FORMS. 


EDITED  BY 

RAYMOND  M.  REMICK 

OF  THE  PHILADELPHIA  BAR 


GEO.  T.  BISEL  CO., 
PHILADELPHIA, 

1922. 


T 


COPYRIGHTED,  1922 

GEO.  T.  BISEL  Co., 

PHILADELPHIA 


PREFACE 

By  the  Act  of  April  23,  1915,  (P.  L.  177)  the  General  Assembly 
of  the  Commonwealth  of  Pennsylvania  authorized  the  Governor 
"to  appoint  a  Commission  of  three  persons,  learned  in  the  law,  and 
one  of  whom  shall  be  an  orphans'  court  judge  in  commission,  to 
codify  and  revise  the  law  of  decedents'  estates  whether  testate  or 
intestate,  and  to  report  the  same  to  the  next  General  Assembly,  and 
to  recommend  such  changes  in  the  existing  law  as  may  to  such 
Commission  seem  advisable." 

Acting  under  this  authority,  on  October  4,  1915,  Governor 
Brumbaugh  appointed  Hon.  John  Marshall  Gest,  then  and  now  a 
judge  of  the  Orphans'  Court  of  Philadelphia  County,  Hon.  George 
E.  Alter,  the  present  Attorney  General,  and  Hon.  Thomas  J.  Bald- 
rige,  the  President  Judge  of  Blair  County,  as  Commissioners  to 
carry  out  the  purpose  of  the  act.  The  wjsdom  of  his  choice  is 
best  demonstrated  by  the  results  of  their  labor. 

The  Commission  appointed  Samuel  D.  Matlack,  Esq.  of  the 
Philadelphia  Bar,  its  Law  Clerk  and  Secretary,  and  through  him 
presented  its  printed  report  to  the  Assembly  on  February  I,  1917. 

It  is  an  indication  of  the  painstaking  and  valuable  work  of  this 
Commission  that  the  General  Assembly  of  1917,  enacted  without 
change  (except  as  noted  in  Section  391  and  the  end  of  Section  623 
herein)  the  acts  which  were  offered  by  the  Commission  for  its  con- 
sideration. The  acts  were  all  approved  on  June  7,  1917,  and  include 
the  "Orphans'  Court  Partition  Act,"  (P.  L.  337)  ;  the  "Orphans' 
Court  Act,"  (P.  L.  363)  ;  the  "Revised  Price  Act,"  (P.  L.  388) ; 
the  "Wills  Act,"  (P.  L.  403)  ;  the  "Register  of  Wills  Act,"  (P.  L. 
415)  ;  the  "Intestate  Act,"  (P.  L.  429)  ;  and  the  "Fiduciaries 
Act,"  (P.  L.  447).  On  the  nth  day  of  July,  1917,  there  were  ap- 
proved two  acts  one  (P.  L.  755)  amending  Clause  2,  (a)  of  the 
Intestate  Act,  and  the  other  (P.  L.  790)  providing  that  fiduciaries 
having  an  interest  in  any  coal-mining  lease  may,  with  the  approval 
of  the  court,  sell,  assign,  alter,  modify  and  supplement  the  same 
under  the  same  procedure  as  that  prescribed  for  the  sale  of  real 
estate  under  the  Revised  Price  Act. 

Several  minor  changes  have  also  been  made  by  the  Legislature 
in  its  sessions  of  1919  and  1921.  Otherwise  the  code  as  drafted 
and  presented  by  the  Commissioners  remains  unchanged,  an  ever- 
lasting monument  to  their  industry  and  ability.  Some  idea  of  the 


iv  PREFACE 

value  of  this  codification  and  revision  to  the  bar  may  be  gained 
from  the  fact  that  it  supersedes  two  hundred  and  eighty-seven 
former  acts  repealed  absolutely  or  in  part. 

The  Commissioners,  in  their  report,  embodied  certain  prelimi- 
nary notes  to  the  report  as  a  whole  and  also  with  respect  to  each 
act.  Also,  in  connection  with  each  section  as  presented,  they  an- 
nexed an  explanatory  remark  and  a  statement  as  to  the  former 
law  which  the  proposed  section  was  intended  to  supersede,  to- 
gether with  a  reference  to  Purdon's  Digest  where  the  former  act 
had  been  annotated,  and  in  certain  cases,  to  the  decision  of  the 
court  which  impelled  or  suggested  the  proposed  change  or  new 
enactment.  These  comments  by  the  Commissioners,  are,  to  the 
practitioner,  of  inestimable  value  in  construing  the  act  and  apply- 
ing it  to  present  cases  in  the  light  of  former  precedents.  With 
the  consent  of  the  Commissioners  these  prefatory  remarks  and 
sectional  notes  have  been  embodied  herein  verbatim. 

The  value  of  these  notes  by  the  Commissioners,  to  the  bench 
and  bar  in  construing  the  acts  may  be  gained  from  the  following 
extract  from  an  opinion  of  Mr.  Chief  Justice  Moschzisker  in 
Miles'  Est.,  272  Pa.  329: 

"While  it  is  well  settled  that  courts  may  not  resort  to  views  expressed 
by  those  who  either  draft  or  enact  laws,  for  the  purpose  of  determinng 
the  meaning  of  the  words  employed  therein  (see  opinion  of  the  court 
below  in  Com.  v.  Mathues,  210  Pa.  372,  392,  and  authorities  there  cited), 
yet,  in  order  to  get  at  the  old  law,  the  mischief  and  remedy,  and  properly 
to  understand  and  construe  a  statute  embodying  the  latter,  the  history  of 
the  enactment  in  question  may  always  be  considered ;  and  when  the 
statute  under  consideration  is  a  general  revision,  'the  law  as  therein 
written  will  be  deemed  to  be  the  same  as  it  stood  prior  to  the  revision, 
unless  we  find  from  the  statute  itself,  or  its  history,  a  clear  intention  to 
change  it ;' "  In  re  Lis's  Estate,  139  N.  W.  300,  302,  and  cases  there  cited  ; 
also  see  authorities  in  36  Cyc.  1223. 

The  United  States  Supreme  Court  has  recently  decided,  in  Duplex  Print- 
ing Press  Company  v.  Deering  (advance  opinion  of  February  i,  1921,  pp. 
182-3),  that  the  report  of  a  committee,  having  a  bill  in  charge  during  its 
passage,  "may  be  regarded  (judicially)  as  an  exposition  of  the  legisla- 
tive intent  in  a  case  where  otherwise  the  meaning  of  a  statute  is  obscure ;" 
but  it  is  not  necessary  to  express  our  views  on  this  point  or  resort  to 
such  an  expedient  in  the  case  at  bar,  for,  as  already  shown,  when  the 
history  of  the  legislation  and  all  cognate  parts  of  the  present  act  are 
considered  together,  the  meaning  of  the  statute  becomes  reasonably 
clear.  We  may  add,  however,  that  when  the  report  of  the  commission 
which  drafted  the  present  act  (The  Intestate  Act)  is  examined,  to  as- 
certain what  that  body  was  endeavoring  to  express  (a  course  pursued  by 
this  court  in  McDowell  v.  Addams,  45  Pa.  430,  433,  when  construing  the 


PREFACE  v 

old  Intestate  Act  of  1833;  see  also  Whitaker's  Estate,  175  Pa.  139,  140-2, 
and  in  re  Lis's  Estate,  supra),  it  is  of  interest  to  observe  that  the  notes, 
on  the  several  sections  of  the  act  to  which  we  have  referred  in  this 
opinion,  show  the  intention  of  the  original  draftsmen,  so  far  as  the 
meaning  of  these  parts  are  concerned,  is  borne  out  in  the  construction 
placed  upon  their  work  by  the  court  below,  and  concurred  in  here." 

No  attempt  has  been  made  to  digest  the  cases  construing  the 
former  acts  of  assembly  replaced  by  the  present  Code  as  this  has 
been  accomplished  in  Purdon's  Digest,  to  which  reference  is 
herein  given.  There  have  been  added  a  digest  of  the  cases  con- 
struing the  sections  of  the  acts  as  the  same  have  been  reported, 
a  comprehensive  index,  table  of  cases,  citation  of  cases  and  lists 
of  acts  amended  or  repealed  and  a  collection  of  forms. 

This  work  purports  to  include  all  amendatory  acts  of  1919  and 
1921  and  all  reported  cases  down  to  December  31,  1921. 

The  editor  acknowledges  with  thanks  the  assistance  of  Harry  C. 
Reynolds,  Esq.,  and  Joseph  A.  Lamorelle,  Esq.,  of  the  Philadelphia 
Bar,  in  verifying  the  citations  of  authorities,  etc. 

R.  M.  REMICK. 


To  THE  GENERAL  ASSEMBLY  OF  THE  COMMONWEALTH  OF  PENN- 
SYLVANIA : 

The  undersigned  were  on  October  4,  1915,  appointed  by  his  ex- 
cellency, the  Governor,  in  accordance  with  the  Act  of  April  .23, 
1915,  P.  L.  177,  as  Commissioners  to  codify  and  revise  the  law  of 
decedents'  estates,  whether  testate  or  intestate,  and  to  report  the 
same  to  the  next  General  Assembly,  and  to  recommend  such 
changes  in  the  existing  law  as  may  to  such  Commission  seem  de- 
sirable. We  have  now  the  honor  to  submit  our  report,  which  we 
beg  leave  to  preface  with  a  few  explanatory  remarks. 

On  March  23,  1830,  the  General  Assembly  adopted  a  joint  res- 
olution, printed  in  the  Pamphlet  Laws  of  1830,  page  408,  by  which 
the  Governor  was  authorized  to  appoint  three  persons  as  Com- 
missioners to  revise,  collate  and  digest  all  such  public  acts  and 
statutes  of  the  civil  code  of  this  State  and  all  such  British  Statutes 
in  force  in  this  State  as  are  general  and  permanent  in  their  nature. 
In  accordance  with  this  resolution  the  then  Governor,  the  Honor- 
able George  Wolf,  appointed  William  Rawle,  Thomas  I.  Wharton 
and  Joel  Jones  as  such  Commissioners,  who  subsequently  reported 
a  large  number  of  draft  Acts,  five  of  which,  relating  to  our  present 
subject,  were  substantially  adopted  by  subsequent  Legislatures 
as  the  Act  of  March  15,  1832,  P.  L.  135,  entitled  An  Act  Relating 
to  Registers  and  Registers'  Courts ;  the  Act  of  March  29,  1832, 
P.  L.  190,  entitled  an  Act  Relating  to  Orphans'  Courts ;  the  Act 
of  April  8,  1833,  P.  L.  249,  entitled  An  Act  Relating  to  Last  Wills 
and  Testaments;  the  Act  of  April  8,  1833,  P.  L.  315,  entitled  An 
Act  Relating  to  the  Descent  and  Distribution  of  the  Estates  of 
Intestates,  and  the  Act  of  February  24,  1834,  P.  L.  70,  entitled  An 
Act  Relating  to  Executors  and  Administrators. 

These  acts  were  drafted  with  great  care  and  consummate  skill, 
and  have  served  for  over  eighty  years  as  the  substratum  of  our 
law  of  decedents'  estates  and  connected  subjects;  but  during  this 
long  period  of  time  the  law  has  been  amended  by  the  passage  of 
more  than  two  hundred  Acts  of  Assembly,  has  been  elucidated  and 
applied  in  countless  judicial  decisions,  and  has  been  necessarily 
affected  by  the  cumulative  changes  in  legal  practice  and  public 
opinion.  The  present  would  therefore  seem  an  appropriate  time 
to  re-examine  the  entire  subject,  to  repeal  statutes  which  are  either 
dead  letters  in  the  books  or  prejudicial  in  their  effect,  to  consolidate 

vi 


REPORT  OF  COMMISSIONERS  vii 

those  that  should  be  retained  and  to  revise  the  entire  system  by 
the  cautious  introduction  of  new  legislation. 

The  act  under  which  we  were  appointed  uses  the  words  "to 
codify  and  revise" ;  and  as  the  word  "code"  is  often  used  in  dif- 
ferent meanings,  we  beg  leave  to  observe,  that  as  we  have  under- 
stood the  legislative  intention,  .we  were  not  expected  to  reduce  to 
the  form  of  a  code  those  general  principles  which  lie  at  the  basis 
of  jurisprudence,  a  task  that  would  indeed  be  beyond  our  powers, 
even  if  its  accomplishment  were  desirable.  We  have  considered 
that  we  were  merely  expected  to  arrange  this  branch  of  the  law  in 
an  orderly  and  systematic  form,  to  relieve  it  from  obscurity  and  in- 
consistency, and  thus  to  render  its  application  easier  and  more 
definite. 

In  our  endeaver  to  fulfil  the  difficult  and  responsible  task  thus 
imposed  upon  us,  we  have  in  many  ways  been  guided  by  the  ex- 
ample of  the  Commissioners  of  1830,  and  particularly  in  this :  We 
have  avoided  making  any  change  in  the  phraseology  of  the  existing 
statutes  unless  some  definite  and  substantive  change  in  the  purpose 
of  the  law  itself  was  intended,  even  where  some  other  words  or 
expressions  might  seem  better  adapted  to  express  that  purpose. 
Our  obvious  reason  has  been  that  the  phraseology  of  the  older 
statutes,  much  of  which  the  Commissioners  of  1830  copied  from 
prior  statutes  as  early  as  those  of  1705,  1794  and  1797,  has  ac- 
quired through  long  use  and  judicial  decision  a  settled  and  deter- 
minate meaning,  which  should  not  be  disturbed  through  any  de- 
sire to  attain  mere  elegance  of  diction;  and,  indeed,  this  course 
was  expressly  enjoined  upon  the  Commissioners  of  1830  by  the 
Resolution  of  the  General  Assembly,  which  provided  that  in  the 
revision  of  the  statutes  "no  such  change  shall  be  made  in  their 
phraseology  by  which  their  true  intent  and  meaning  shall  in  any 
wise  be  impaired,  altered  or  affected,  except  in  those  instances 
in  which  it  shall  be  expressly  intended  and  proposed  to  amend  or 
change  the  existing  provisions  of  such  statutes."  This  principle 
has  however  been  adhered  to  with  greater  strictness  in  revising 
those  statutes  which  relate  to  substantive  law  than  in  case  of 
those  which  merely  regulate  procedure;  and,  throughout,  some 
verbal  changes  have  been  made  for  the  sake  of  brevity  and  clear- 
ness, where  no  alteration  of  the  meaning  is  involved. 

Upon  another  point  we  would  also  refer  to  the  judicious 
language  of  the  Commissioners  of  1830,  where  they  stated  their 
belief  that  the  Legislature  desired  to  possess  not  only  a  revised 


viii  REPORT  OF  COMMISSIONERS 

and  consolidated  code,  but  one  systematized  as  to  subject  matter 
and  arranged  into  regular  and  appropriate  titles  each  of  which 
shall  contain  all  that  naturally  belongs  to  it  and  no  more. 

Our  duty  has  been  "to  codify  and  revise  the  law  of  decedents' 
estates,  whether  testate  or  intestate."  As  soon,  however,  as  we 
undertook  that  duty,  we  found  that  it  was  difficult,  if  not  impos- 
sible, to  perform  it  without  apparently  exceeding  the  scope  of  our 
appointment.  We  discovered  that  many  statutes  applied  not 
merely  to  the  estates  of  decedents,  but  in  a  broader  way  to  other 
subjects ;  we  could  not  touch  one  without  touching  another,  and 
yet  if  we  omitted  such  statutes  altogether,  our  work  would  have 
been  rendered  obviously  imperfect.  For  example,  the  Act  of 
April  1 8,  1853,  P.  L.  503,  commonly  called  the  Price  Act,  relates 
not  merely  to  sales  of  real  estate  where  the  real  estate  has  been 
acquired  by  descent  or  will,  but  also  to  cases  where  the  title  has 
been  acquired  by  deed,  in  which  case  jurisdiction  is  vested  in  the 
Courts  of  Common  Pleas ;  and  yet  by  far  the  greater  number  of 
the  cases  to  which  the  Act  applies  arise  under  wills.  In  this  case, 
we  have  assumed  that  our  inclusion  of  such  a  statute  in  our  work 
of  revision  was  virtually  intended  by  the  Legislature  and  there- 
fore submit  our  report  with  this  explanation. 

So  far  as  concerns  our  recommendations  for  substantive 
changes  in  the  law,  we  have  endeavored  to  be  conservative,  and 
yet  have  not  hesitated  to  suggest  important  changes  where  we 
thought  them  distinctly  beneficial.  It  has  been  often  said,  and  with 
truth,  that  the  burden  of  proof  is  upon  him  who  advocates  a 
change  in  the  law,  and  this  rule  is  distinctly  applicable  to  that  de- 
partment of  the  law  which  has  been  referred  to  us.  For  the  law 
of  decedents'  estates  in  this  Commonwealth  is  and  has  been  for 
many  years,  certainly  since  the  Revised  Acts  drafted  by  the  Com- 
missioners of  1830,  most  admirable  in  its  theory,  and  in  practice 
most  satisfactory  to  the  community.  We  have  therefore  been 
careful  to  limit  our  recommendations  to  those  changes,  which  we 
felt  after  our  careful  deliberations  and  unanimous  conclusions 
would  meet  with  the  approval  of  the  representatives  of  our  fellow 
citizens,  and  deserve  a  practical  trial.  We  have  further  endeav- 
ored to  obtain  from  those  best  qualified  to  make  suggestions  their 
aid  and  counsel,  and  to  this  end  immediately  on  our  appointment 
addressed  the  Judges  of  the  Supreme,  Superior,  Common  Pleas 
and  Orphans'  Courts  of  the  Commonwealth,  and  caused  an  ad- 
vertisement of  our  appointment  to  be  inserted  in  our  principal 


REPORT  OF  COMMISSIONERS  ix 

legal  journals  as  notice  to  the  Bar.  All  the  suggestions  that  we 
have  received  in  this  way  have  been  carefully  considered  and 
many  of  them  have  been  adopted  by  us. 

It  gives  us  pleasure  also  to  acknowledge  our  indebtedness  to 
the  Legislative  Reference  Bureau  for  much  valuable  assistance. 

In  thus  laying  before  the  General  Assembly  the  accompanying 
drafts,  we  would  express  our  fear  lest  the  complexity  and  diffi- 
culty of  our  subject  may  have  caused  us  to  omit  matters  that 
should  have  been  included.  But  we  hope  that  such  are  not  numer- 
ous or,  comparatively  speaking,  important,  and  that  the  work  as 
a  whole  may  meet  with  the  approval  of  the  General  Assembly 
and  prove  beneficial  to  the  Commonwealth. 

JOHN  MARSHALL  GEST, 
GEORGE  E.  ALTER, 
THOMAS  J.  BALDRIGE, 

Commissioners. 
SAMUEL  D.  MATLACK, 

Law  Clet*k  and  Secretary. 
FEBRUARY  i,  1917. 


THE  ORPHANS'  COURT  PARTITION 

ACT 

of 
June  7,  1917  (P.  L.  337) 

Preliminary  Note  by  Commission 

None  of  the  subjects  considered  by  the  Commissioners  have 
needed  revision  more  than  that  of  partition.  The  Acts  of  Assem- 
bly relating  to  this  are  numerous  and  complicated,  and  the  Com- 
missioners have  experienced  no  little  difficulty  in  their  revision. 

In  Sections  2  and  3  of  the  Act  as  reported,  express  provision 
is  made  for  a  citation  and  notice  to  the  parties  interested  before 
an  inquest  is  awarded. 

In  Section  5,  and  in  other  sections  of  the  act,  more  liberal  pro- 
vision is  made  for  the  service  of  citations  or  notices  to  parties 
resident  outside  of  the  commonwealth. 

In  Section  6,  it  is  provided  that  the  sheriff's  inquisition  shall 
consist  of  three  men,  corresponding  with  the  number  of  commis- 
sioners. 

In  Section  7,  the  fees  of  commissioners  and  jurors  are  regulated. 

In  Section  13,  it  is  provided  that  the  allotment  of  purparts 
among  the  parties  entitled  shall  be  in  accordance  with  seniority 
of  age,  in  order  to  establish  a  uniform  method  in  all  cases. 

In  Section  43,  an  appeal  is  authorized  from  the  decree  of  the 
court  awarding  an  inquest,  which  under  the  present  law  is  held 
to  be  interlocutory  only. 


TABLE  OF  CONTENTS 

1917  Section 

Pamphlet  Number 

Laws  Herein 

The  Orphans'  Court  Partition  Act, 337  I 

Section  i.  Jurisdiction  of  Orphans'  Court, 339  2 

(a)  In  general, 2 

(b)  Coal  and  timber-lands, 340  3 


2  PARTITION  ACT— CONTENTS 

1917  Section 

Pamphlet  Number 

Laws  Herein 

Section  2.  Petitioners,    4 

Section  3.  Citation,    5 

Section  4.  Parties   respondent;    notices   to   unknown 

parties,  6 

Section  5.  Service  outside  of  State 7 

Section  6.  Appointment  of  commissioners,  or  award 

of  inquest, 34* 

Section  7.  Compensation    and    mileage    of    commis- 
sioners and  jurors, 9 

Section  8.  Making    of    partition    by    commissioners, 

or  inquest,    10 

Section  9.  Action  of  commissioners  or  inquest,  where 

equal  partition  cannot  be  made, II 

(a)  Where  no   division  is  possible;   valuation 

of  the  whole,  1 1 

(b)  Purparts  unequal  in  value, 12 

(c)  Purparts  not  equal  in  number  to  number 

of  parties  entitled,   13 

Section  10.  Valuation     of     undivided     interest     of 

decedent,    342  14 

Section  n.  Rule   to  accept  or   refuse  the  whole  or 

purparts  at  the  valuation,  15 

Section  12.  Bids  above  valuation,   16 

Section  13.  Allotment  in  the  absence  of  bids, 17 

(a)  Order  of  choice,  17 

(b)  Offer  to  next  in  succession  where  party 

entitled  fails  to  appear,  or  refuses  to  take,        343  18 

(c)  Election    to    take    real    estate,    or    share 
thereof,    postpones    party    as    to    other 
shares,    or    as    to    real    estate    in    other 

county,     ig 

Section  14.  Permitting  residue  of  premises  to  remain 

for  parties  not  appearing 20 


PARTITION  ACT— CONTENTS  3 

1917  Section 

Pamphlet  Number 

Laws  Herein 
Section  15.  Allotment  to  widow  as  highest  bidder,..        343  21 

Section  16.  Partition  to  be  firm  and  stable  after  final 

decree,    22 

Section  17.  Owelty, 344               23 

(a)  Payment  or  security,  23 

(b)  Enforcement  of  payment  by  nonresident,  24 

(c)  Appointment  of  trustee   for  parties  who 

are  unknown,  or  cannot  be  found, 25 

Section  18.  Widow's  interest, 345  26 

(a)  Interest     to     remain     charged     on     the 

premises,  26 

(b)  Charging  widow's   interest   on  particular 

purparts,    27 

Section  19.  Other  undivided  life  interests  to  remain 

charged   on   real   estate, 346  28 

Section  20.  Deduction  of  rental  value  from  shares  of 

parties  who  have  been  in  possession, 29 

Section  21.  Rule  to  show  cause  why  sale  should  not  be 

made ;  decree  of  sale, 30 

Section  22.  Combination  of  rule  to  accept  or  refuse 
with  rule  to  show  cause  why  sale  should 
not  be  made,  347  31 

Section  23.  Sales  for  the  purpose  of  distribution,  on 

petition  of  all  parties  interested, 32 

(a)  In  general,    32 

(b)  Lands   in    different   counties, 348               33 

Section  24.  Appointment  of  trustee  to   make  sale,..  34 

Section  25.  Bond     of     executor,     administrator,     or 

trustee  making  sale, 35 

Section  26.  Discharge  of  liens  by  sale, 36 

Section  27.  Recognizance  by  purchaser, 349  37 

Section  28.  No   obligation   to    see   to   application   of 

purchase   money,    38 


4  PARTITION  ACT— CONTENTS 

1917          Section 
Pamphlet       Number 
Laws         Herein 
Section  29.  Widow's  interest  to  remain  in  hands  of 

purchaser,    39 

Section  30.  Other  undivided  life  interests  to  remain 

charged  on  real  estate, 40 

Section  31.  Appointment    of    trustee    to    hold    prin- 
cipal  of   sum   in   which   there   is   a   life 

interest,   350               41 

Section  32.  Procedure  where  executor,  administrator, 
or  trustee  becomes  incapable,  is  removed, 

or  dies,    42 

Section  33.  Appointment  of  auditor  to  ascertain  liens 

or  incumbrances,   43 

Section  34.  Account   of    executor,    administrator,    or 

trustee, 351               44 

Section  35.  Costs  and  counsel  fees 45 

(a)  In  general, 45 

(b)  In  cases  of  sale, 46 

Section  36.  Private  sales,   47 

(a)  When  ordered,  47 

(b)  Notice  of  sale,   48 

(c)  Setting  aside  sale,  352               49 

Section  37.  Lands    in    adjoining    tracts    in    different 

counties, 50 

Section  38.  Lands   in   different   counties,   but   not   in 

adjoining  tracts,  353               51 

(a)  Where  proceedings  shall  be  brought, 51 

(b)  Service   of   process   and   notices, 52 

(c)  Selection    of    commissioners    or    jurors; 
compensation  and  mileage, 53 

(d)  Sales,    54 

(e)  Proceedings  not  specially  provided  for  in 

this    section 55 

(f)  Filing  certified  copies  in  other  counties,..  56 

Section  39.  Recognizances  in  general, 354               57 

(a)  Ascertainment    of   amounts    due, 57 

(b)  Satisfaction,    58 

1.  Satisfaction  of  record, 58 

2.  Remedy  for  refusing  to  satisfy 59 


PARTITION  ACT— SECTION  i  (a)  5 

1917  Section 

Pamphlet  Number 

Laws  Herein 
Section  40.  Protection  of  interests  of  persons  not  in 

esse 60 

Section  41.  Partition  docket,  355               61 

Section  42.  Partition    index,    62 

Section  43.  Appeals,    63 

Section  44.  Short  title  section,   64 

Section  45.  Repealer 355-63          65 

1.  TITLE. 

AN  ACT 

Relating  to  the  jurisdiction,  powers  and  procedure  of  the  several 
orphans'  courts  in  proceedings  for  the  partition  and  valuation 
of  real  estate,  and  for  the  sale  of  real  estate  for  the  purpose 
of  distribution,  and  the  fees,  costs  and  expenses  therein. 

2.  JURISDICTION  OF  ORPHANS'  COURT.— In  general. 

SECTION  i.  (a)  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  Commonwealth  of  Pennsylvania  in  General 
assembly  met,  and  it  is  hereby  enacted  by  the  authority  of  the 
same,  that  the  orphans'  court  of  each  county  of  this  Common- 
wealth shall  have  jurisdiction,  but  not  exclusive  jurisdiction,1  in 
the  partition  and  valuation  of  real  estate,  within  the  county,  of 

NOTE. — This  is  a  new  section  combining  the  provisions  of  the  various 
acts  relating  to  the  jurisdiction  of  the  Orphans'  Court  in  partition.  The 
derivation  of  the  different  clauses  is  shown  in  the  special  notes  below. 

Special  Notes  to  Section  i. 

aDerived  from  Section  i  of  the  Act  of  April  21,  1846,  P.  L.  426,  3 
Purd.  3451,  which  provides  that  the  jurisdiction  in  cases  of  intestacy  shall 
not  be  exclusive,  and  the  proviso  to  Section  4  of  the  Act  of  April  13,  1840, 
P.  L.  320,  3  Purd.  3424,  which  makes  similar  provision  as  to  cases  of 
testacy. 

It  seems  unnecessary  to  reenact  the  provision  of  those  acts  that  nothing 
therein  contained  shall  be  construed  to  prevent  any  of  the  parties  interested 
in  the  real  estate  from  proceeding  by  action  in  partition  (or  bill  in  equity) 
as  theretofore. 


6  PARTITION  ACT— SECTION  i  (a) 

any  decedent,  testate2  or  intestate,3  whether  such  decedent  was  at 
the  time  of  his  death  seized  or  possessed  of  such  real  estate  solely 
or  as  tenant  in  common  or  joint  owner  with  any  other  person  or 
persons,4  and  whether  or  not  the  surviving  spouse  of  such  de- 
cedent shall  elect  to  take  against  his  or  her  will,8  and  notwith- 
standing there  may  be  a  limitation  of  an  estate  or  interest  in 'the 
premises  or  some  part  thereof,  to  a  person  or  persons  not  in 'ex- 
istence ;6  and  several  undivided  interests  in  any  premises,  derived 
from  different  ancestors  by  descent  or  devise,  may  be  parted  or 
valued  in  one  proceeding  in  said  court  :7  Provided,  That  such 

2This  covers  the  provisions  of  Section  4  of  the  Act  of  April  13,  1840, 
P.  L.  320,  3  Purd.  3424;  Section  i  of  the  Act  of  May  9,  1889,  P.  L.  146,  3 
Purd.  3424;  and  Section  10  of  the  Act  of  April  10,  1849,  P.  L.  596,  3  Purd. 
3424,  so  far  as  they  confer  jurisdiction  in  cases  of  testacy. 

The  Act  of  1840  gave  jurisdiction  where  the  parties  interested  or  any  of 
them  were  minors  or  the  course  of  descent  was  not  altered  by  the  provi- 
sions of  the  will.  The  Act  of  1889  gave  jurisdiction  in  all  cases  of  testacy, 
without  respect  to  the  minority  of  the  parties  or  their  relationship  to  the 
testator.  The  Act  of  1849  gave  jurisdiction  where  the  whole  or  part  of  the 
real  estate  was  devised  to  two  or  more  children. 

3This  embodies  the  jurisdictional  provision  of  Section  36  of  the  Act 
of  March  29,  1832,  P.  L.  201,  3  Purd.  3418.  This  was  Section  38  in  the 
draft  of  the  Commissioners  of  1830,  and  was  founded  upon  Section  22  of 
the  Act  of  April  19,  1794,  3  Sm.  L.  143,  with  various  changes. 

The  Commissioners  remarked  that  in  this  and  the  ten  succeeding  sec- 
tions they  had  collected  all  the  provisions  relating  to  partition  in  the 
orphans'  court  which  were  scattered  in  various  acts,  and  had  endeavored 
to  consolidate  and  arrange  them  in  order. 

*This  covers  the  first  part  of  Section  i  of  the  Act  of  March  13, 
1847,  P-  L.  319,  3  Purd.  3424. 

5This  covers  the  jurisdictional  provision  of  Section  2  of  the  Act  of 
April  20,  1869,  P.  L.  77,  3  Purd.  3423,  and  that  part  of  Section  i  of  the 
Act  of  May  9,  1889,  P.  L.  146,  3  Purd.  3424,  which  provides  that  the  or- 
phans' court  shall  have  jurisdiction  in  all  cases  of  testacy,  without  respect 
to  "the  fact  of  a  widow's  election  not  to  take  under  the  will." 

'These  words  have  been  added  to  make  it  clear  that  the  orphans' 
court  has  jurisdiction  in  such  cases.  Section  i  of  the  Act  of  June  3,  1840, 
P-  L.  593,  and  Section  9  of  the  Act  of  April  5,  1842,  P.  L.  234,  3  Purd. 
3412-13,  refer  only  to  "writs  of  partition."  The  second  proviso  of  the  Act 
of  1840  is  covered  by  Section  40  of  this  draft.  (See  60,  infra.)  The  first 
proviso,  as  amended  by  the  Act  of  1842,  is  embodied  in  Section  2,  infra. 
(See  4,  infra.) 

7This  incorporates  the  provision  of  Section  i  of  the  Act  of  February 
26,  1869,  P.  L.  4.  3  Purd.  3425,  which  was  passed  because  of  the  decision 
in  Snyder's  Appeal,  36  Pa.  166,  that  the  estate  of  one  decedent  only  could 
be  partitioned  in  a  proceeding  in  the  orphans'  court,  which  had  no  juris- 
diction where  the  tract  was  held  in  common  by  the  same  parties,  partly 
as  devisees  of  their  father  and  partly  as  heirs  of  their  mother. 


PARTITION  ACT— SECTION  i  (a),  (6)  7 

court  shall  not  have  such  jurisdiction  during  the  continuance  of 
any  life  estate  in  the  whole  of  such  real  estate.8 

8The  proviso  is  new,  being  declaratory  of  the  existing  law :  Lee's 
Estate,  13  Phila.  291. 

Where  the  decedent  had,  during  his  lifetime,  sold  and  conveyed  certain 
real  estate  of  which  he  was  the  owner  in  fee,  without  the  joinder  of  his 
wife,  the  court  dismissed  the  widow's  petition  for  the  partition  thereof 
after  his  death,  stating,  with  regard  to  the  purview  and  scope  of  the  act 
"The  very  words  of  the  enactment  show  that  it  applies  only  to  the  real 
estate  of  which  the  decedent  died  seized,  and  excludes  from  its  purview 
and  operation  lands  of  which  the  decedent  did  not  die  seized.  The  language 
of  the  act  is  so  clear  that  even  a  layman  can  understand  the  same  and  no 
canons  of  construction  need  be  introduced  to  interpret  its  purposes  or 
enactments."  Per  Hughes,  P.  J.,  in  Stockdale's  Estate,  29  Dist.  1013. 
(Note.  This  case  contains  a  very  extensive  discussion  of  the  previous 
statutes  relating  to  partition  in  the  orphans'  court  out  of  which  the  Act 
of  1917  was  constructed.) 

"The  Act  of  March  13,  1847,  P.  L.  319,  declares  'The  jurisprudence  of  the 
several  orphans'  courts  of  this  Commonwealth,  in  the  partition  and  valu- 
ation of  real  estate,  shall  extend  to  any  undivided  interest,  in  fee  simple, 
in  any  lands  or  tenements  of  which  any  person  has  died  or  shall  hereafter 
die  seized  or  possessed,  as  tenant  in  common  or  joint  owner,  with  any 
other  person  or  persons,  as  fully  as  if  such  decedent  were  solely  seized 
or  possessed  thereof  at  the  time  of  his  or  her  death.'  This  is  reenacted  in 
Section  i  of  the  Act  of  June  7,  1917,  P.  L.  337-  The  jurisdiction  of  the 
common  pleas  being  concurrent  with  that  of  the  orphans'  court  in  par- 
tition proceedings,  what  is  necessary  in  the  one  is  requisite  in  the  other. 
In  partition,  whether  in  the  common  pleas  or  in  the  orphans'  court,  it  is 
incumbent  on  the  party  instituting  the  proceeding,  if  practicable  to 
embrace  the  whole  of  the  undivided  realty  within  the  jurisdiction  or 
power  of  the  court.  There  cannot  be  inquisitions  upon  it  by  parcels' : 
Stickles  vs.  Oviatt,  212  Pa.  219.  It  was  clearly  practicable  to  include  all 
of  the  real  estate  of  the  common  ancestor  in  one  bill  in  the  court  below, 
and  it  correctly  so  held."  Opinion  of  the  court  in  Gilpin  vs.  Brown,  268 
Pa.  398;  112  All.  124. 

3.     COAL  AND  TIMBER  LANDS. 

(b)  Partition  may  be  made  under  this  act  of  lands  and  coal- 
rights  therein,  and  of  lands  and  timber-rights  thereon,  of  any 
decedent,  whether  the  rights  of  all  the  parties  be  co-extensive 
with  the  whole  or  not;  and  whether  the  rights  of  some  of  them 
extend  only  to  the  lands  and  part  of  the  coal  therein,  or  only  to 
the  land  and  part  of  the  timber  thereon,  or  only  to  an  undivided 
interest  in  the  land,  or  in  the  coal  therein  or  in  the  timber  thereon ; 
and  any  person  having  an  interest  as  herein  set  forth  may  compel 


8  PARTITION  ACT— SECTIONS  i  (fr)-2 

partition  of  the  entire  tract  of  land  and  coal,  or  land  and  timber, 
provided  said  coal  or  said  timber  has  not  been  entirely  severed  so 
as  to  constitute  a  separate  estate. 

NOTE.— This  is  Section  I  of  the  Act  of  May  6,  1915,  P.  L.  269,  6  Purd. 
7052,  amending  Section  3  of  the  Act  of  May  14,  1874,  P.  L.  156,  3  Purd. 
3449.  In  the  first  line,  "this  act"  has  been  substituted  for  "existing  laws." 

The  repeal  of  the  acts  mentioned  is  recommended  only  so  far  as  they 
relate  to  the  orphans'  court. 

4.    PETITIONERS. 

SECTION  2.  The  jurisdiction  of  the  orphans'  court  under  this 
act  shall  be  exercised  on  the  petition  of  the  surviving  spouse  of 
the  decedent,  of  any  heir  of  the  decedent  in  a  case  of  intestacy, 
or  of  any  devisee  having  an  interest  in  the  real  estate  in  question 
in  a  case  of  testacy,  whether  the  interest  of  such  person  be  vested 
in  possession  or  in  remainder,  or  of  any  person  having  a  life 
interest  in  an  undivided  share  of  such  real  estate,  or  of  any  alienee 
or  devisee  of  any  party  in  interest.  If  the  party  be  a  weak- 
minded  person  for  whom  a  guardian  has  been  appointed,  or  a 
minor,  lunatic  or  habitual  drunkard,  the  petition  shall  be  filed 
by  the  guardian  or  committee  of  such  party. 

NOTE. — This  is  founded  on  part  of  Section  36  of  the  Act  of  March  29, 
1832,  P.  L.  201,  3  Purd.  3418.  That  section  relates  only  to  cases  of 
intestacy  and  provides  for  application  by  the  widow  or  any  lineal  descend- 
ant. It  is  now  extended  to  include  a  surviving  husband  and  collateral 
heirs,  parties  entitled  in  remainder,  and  alienees  or  devisees  of  parties 
in  interest.  Provision  is  also  made  for  the  cases  of  lunatics,  etc.,  as 
well  as  minors.  This  covers  the  provisions  of  Section  i  of  the  Act  of 
March  22,  1865,  P.  L.  31,  3  Purd.  3450,  so  far  as  they  relate  to  partition 
in  the  orphans'  court.  The  provision  as  to  life  tenants  of  undivided 
shares  corresponds  to  the  Acts  of  1840  and  1842,  referred  to  in  Note  6 
to^Section  i  (a)  supra.  (See  2  supra.) 

Section  46  of  the  Act  of  March  29,  1832  (P.  L.  202),  3  Purd.  3432  reads : 
"When  the  decedent  leaves  no  lineal  descendants,  the  like  proceedings  shall 
be  had  in  all  respects,  on  the  application  of  the  persons  in  whom  the  estate 
shall  vest  in  possession."  This  is  covered  by  the  present  section  of  the  new 
draft.  Under  Section  46  it  was  held  that  jurisdiction  was  conferred  only 
when  the  application  was  made  by  those  in  whom  the  estate  vested  in 
possession,  and  a  collateral  heir,  entitled  in  remainder  only,  had  no 
standing:  Negley's  Estate,  23  Pitts.  L.  J.  41;  Deshong's  Estate,  6  Del. 
Co.  519.  Under  the  revised  Intestate  Act,  collateral  heirs  will  not  take 
if  there  are  any  lineal  descendants,  and  when  collateral  heirs  do  take 
their  interests  will  vest  at  once,  since  the  life  estates  of  surviving  spouses 
and  of  parents  are  abolished. 


PARTITION  ACT— SECTIONS  2-3  9 

Section  I  of  the  Act  of  June  26,  1895,  P-  L.  381,  amended  by  the  Act 
of  June  10,  1901,  P.  L.  553,  3  Purd.  3450,  and  Section  2  of  the  Act  of  June 
26,  1895  (P.  L.  381),  3  Purd.  3451,  provide  for  the  appointment  of  a  com- 
mittee ad  litem  for  lunatic  defendants  "in  all  actions  or  proceedings  in 
partition,  and  in  all  other  actions  and  proceedings  whatsoever,  either  at  law, 
in  equity  or  in  the  orphans'  court."  It  seems  unnecessary  to  repeat  these 
provisions  in  the  Partition  Act. 

Section  8  of  the  Act  of  April  24,  1843,  P.  L.  360,  3  Purd.  3434  pro- 
viding a  method  for  securing,  before  partition,  the  widow's  dower  interest 
in  property  which  was  owned  by  the  decedent  in  common  or  coparcenary 
with  others,  is  recommended  for  repeal  as  unnecessary,  in  view  of  the 
provisions  of  Sections  2  and  12  (see  16  infra)  of  this  draft. 

The  local  Act  of  February  13,  1867,  P.  L.  160,  3  Purd.  3435,  provides 
that  in  all  cases  of  testacy,  on  the  petition  of  the  widow  or  of  her 
personal  representative,  the  court  shall  have  power  to  appoint  com- 
missioners or  award  an  inquest  for  the  purpose  of  making  partition  or 
valuation  of  the  dower  of  the  widow.  This  act  relates  to  York  and 
Fayette  Counties. 

See  form  56. 

One  having  at  least  a  life  estate,  if  not  a  fee,  under  a  will  disposing 
of  an  undivided  fourth  interest  in  certain  real  estate,  is  a  proper  party 
to  petition  the  court  for  partition  under  this  section  of  the  act.  Klump's 
Estate,  50  Pa.  C.  C.  99,  29  Dist.  1004. 

A  petition  for  an  inquest  in  partition  under  this  section  of  the  act  will 
be  dismissed  where  the  guardian  of  the  estate  of  minor  heirs  or  devisees 
has  not  been  joined.  A  petition  by  a  remaining  trustee  for  a  citation 
directed  against  the  parties  in  interest,  to  show  cause  why  an  inquest  in 
partition  should  not  be  granted,  whereunder  a  citation  was  awarded 
directed  against  two  children  who  were  of  age  and  against  no  one  else, 
which  children  in  their  answer  aver  that  a  guardian  appointed  for  three 
other  children  who  were  minors  had  not  been  made  a  party  to  the  pro- 
ceedings, was  dismissed.  Herdle's  Estate,  29  Dist.  817. 

5.     CITATION. 

SECTION  3.  On  such  petition,  supported  by  oath  or  affirmation, 
the  court  may  award  a  citation,  returnable  at  a  day  certain,  not 
less  than  ten  days  after  the  issuing  thereof,  directed  to  all  the 
parties  in  interest  other  than  the  petitioner  or  petitioners,  to  show 
cause  why  an  inquest  in  partition  should  not  be  awarded.  Such 
citation  shall  be  served  in  the  manner  provided  by  law  for  the 
service  of  other  citations  in  the  orphans'  court. 

NOTE. — This  is  a  new  section,  modeled  on  Clause  i  of  Section  57  of 
the  Act  of  March  29,  1832  (P.  L.  190)  3  Purd.  3373.  It  seems  unnecessary 
to  repeat  in  this  act  the  provisions  as  to  service,  publication,  etc.,  contained 
in  the  Orphans'  Court  Act. 


10  PARTITION  ACT— SECTIONS  4-5-6 

6.  PARTIES  RESPONDENT ;  NOTICE  TO  UNKNOWN 

PARTIES. 

SECTION  4.  All  parties  in  interest,  including  those  entitled  in 
remainder,  shall  be  named  in  the  petition,  citation,  decree  and 
notices,  when  known;  but  if  it  shall  appear,  on  oath  or  affirma- 
tion, that  the  names  or  residences  of  any  of  the  parties  are 
unknown  to  the  petitioner  for  the  partition,  the  orphans'  court 
shall  have  the  power  to  direct  such  notices  as  shall  appear  to 
the  court  to  be  reasonable  and  proper  to  be  given  to  such  parties 
by  publication,  describing  the  parties,  as  far  as  practicable ;  and 
the  proceedings  shall  be  as  effectual,  to  all  intents  and  purposes,  as 
if  all  the  parties  had  been  named  in  the  proceedings. 

NOTE.— This  is  Section  2  of  the  Act  of  April  14,  1835,  P.  L.  275,  3  Purd. 
3425,  extended  to  cases  of  testacy  as  well  as  intestacy. 

The  following  words  have  been  inserted :  "including  those  entitled  in 
remainder,"  and  "citation,"  and  the  words  "in  the  public  newspapers" 
have  been  omitted. 

7.  SERVICE  OUTSIDE  OF  STATE. 

SECTION  5.  Where  any  of  the  parties  in  interest  reside  outside 
of  the  commonwealth  of  Pennsylvania  and  their  places  of  resi- 
dence are  known,  the  court  may,  in  its  discretion,  authorize  any 
citations  or  notices  provided  for  by  this  act,  to  be  served  upon 
them  personally  or  by  registered  mail,  or  direct  publication 
thereof. 

NOTE. — This  is  a  new  section.  Where  the  residence  of  a  party  is  known 
and  he  can  be  personally  served,  constructive  notice  by  publication  is  not 
only  unnecessarily  expensive  but  futile.  The  proceeding  being  one  in  rem, 
there  can  be  no  objection  to  service  outside  of  the  state  which  would  not 
apply  equally  to  service  by  publication. 

8.  APPOINTMENT  OF  COMMISSIONERS,  OR 

AWARD  OF  INQUEST. 

SECTION  6.  If,  on  the  return  of  such  citation,  no  answer  or  an 
insufficient  answer  be  filed,  or  if,  after  hearing  on  petition,  answer, 
replication  and  proofs,  it  shall  appear  proper,  the  court  may 
appoint,  on  the  agreement  and  nomination  of  the  parties,  three 
or  more  commissioners  to  divide  or  value  the  real  estate  de- 
scribed in  the  petition,  with  the  same  effect  as  a  sheriff's  inquest 
for  the  same  purpose,  or,  if  the  parties  cannot  so  agree,  may 


PARTITION  ACT— SECTIONS  6-7  II 

award  an  inquest  to  make  partition  among  the  parties  in  accord- 
ance with  their  respective  interests,  the  inquest  to  consist  of 
three  men. 

NOTE. — The  first  three  lines,  to  the  word  "proper,"  are  new.  The 
provision  as  to  awarding  an  inquest  is  taken  from  Section  36  of  the  Act 
of  March  29,  1832,  P.  L.  201,  3  Purd.  3418,  except  that  the  words  "among 
the  parties  in  accordance  with  their  respective  interests"  have  been  in- 
serted, to  cover  cases  where  the  interests  are  unequal,  as  was  done  by 
Section  10  of  the  Act  of  April  10,  1849,  P.  L.  596,  3  Purd.  3424,  which 
related  only  to  devises  to  two  or  more  children,  and  is  now  recommended 
for  repeal. 

The  provision  of  Section  36  of  the  Act  of  1832  for  the  appointment  of 
"seven  or  more  disinterested  persons"  has  been  omitted,  and  the  provision 
of  Section  4  of  the  Act  of  April  27,  1855,  P.  L.  369,  3  Purd.  3452,  sub- 
stituted. 

The  Act  of  May  I,  1879,  P.  L.  40,  3  Purd.  3452,  reduced 
the  number  of  jurors  from  twelve  to  six.  The  number  is  now  reduced 
to  three. 

The  Acts  of  1855  and  1879  apply  to  proceedings  in  the  common  pleas 
as  well  as  in  the  orphans'  court  and  are  recommended  for  repeal  only 
so  far  as  they  relate  to  the  latter  court. 

9.     COMPENSATION   AND    MILEAGE    OF    COMMIS- 
SIONERS AND  JURORS. 

SECTION  7.  The  compensation  of  such  commissioners,  and  of 
the  jurors  when  an  inquest  is  awarded,  shall  be  fixed  by  the 
court,  but  shall  not  exceed  five  dollars  a  day  each,  for  each  day 
engaged  in  making  such  partition  and  valuation,  unless  the  parties 
interested  shall  agree  in  writing  to  a  larger  compensation.  Such 
commissioners  and  jurors  shall  also  receive  in  addition  to  their 
daily  pay  three  cents  per  mile  circular  for  each  mile  necessarily 
traveled  by  them,  counting  from  the  place  at  which  said  com- 
missioners or  jurors  first  met. 

NOTE. — Section  4  of  the  Act  of  April  27,  1855,  P.  L.  369,  3  Purd.  3452, 
allowed  the  commissioners  three  dollars  a  day  and  did  not  provide  for 
mileage.  Section  2  of  the  Act  of  April  17,  1856,  P.  L.  386,  3  Purd.  3455, 
allowed  the  jurors  one  dollar  per  day  and  mileage. 

The  Commissioners  consider  that  it  is  proper  to  fix  the  same  maximum 
compensation  and  to  allow  mileage  in  both  cases.  The  increase  to  five 
dollars  a  day  is  justified  in  cases  involving  the  services  of  men  experienced 
in  the  valuation  of  real  estate.  The  amount  of  the  compensation  is  left 
to  the  discretion  of  the  court  in  every  case. 


12  PARTITION  ACT— SECTIONS  8-9  (o),  (&) 

10.     MAKING  OF  PARTITION  BY  COMMISSIONERS, 
OR  INQUEST. 

SECTION  8.  The  commissioners  or  inquest  shall,  if  the  same 
can  be  done  without  prejudice  to  or  spoiling  the  whole,  make 
partition  of  the  real  estate  in  purparts  among  the  parties  entitled 
in  accordance  with  their  respective  interests,  whether  such  inter- 
ests be  equal  or  otherwise,  and  shall  make  return  thereof  to  the 
court. 

NOTE. — This  is  a  new  section,  declaratory  of  the  existing  law  and 
introduced  for  the  sake  of  completeness. 

The  provision  for  cases  where  the  interests  of  the  parties  are  not 
equal  is  suggested  by  the  second  clause  of  Section  10  of  the  Act  of  April 

10.  1849,  P.  L.  596,  3  Purd.  3424,  which  relates  only  to  devises  to  two  or 
more  children  in  unequal  proportions.    The  first  clause  of  that  section  is 
covered  by  Section   I    (see  2  supra)   of  the  present  draft,  and  the  last 
clause  is  a  validating  provision.    The  section  is  recommended  for  repeal. 

11.  ACTION    OF    COMMISSIONERS    OR    INQUEST, 

WHERE  EQUAL  PARTITION  CANNOT  BE 
MADE;  WHERE  NO  DIVISION  IS  POSSIBLE; 
VALUATION  OF  THE  WHOLE. 

SECTION  9.  (a)  When  any  such  estate  cannot  be  divided  among 
the  parties  entitled  thereto  without  prejudice  to  or  spoiling  the 
whole,  the  said  commissioners,  or  the  said  inquest,  as  the  case 
may  be,  shall  make  and  return  a  just  appraisement  thereof  to 
the  court. 

NOTE. — This  is  the  first  part  of  Section  37  of  the  Act  of  March  29, 
1832,  P.  L.  201,  3  Purd.  3427,  which  was  derived  from  Section  22  of  the 
Act  of  April  19,  1794,  3  Sm.  L.  143. 

It  is  now  changed  so  as  to  apply  in  all  cases  and  not  merely  to  cases  of 
intestacy  where  the  real  estate  descends  to  the  widow  and  lineal  descend- 
ants. The  word  "commissioners"  has  been  substituted  in  line  3  for 
"seven  or  more  persons." 

The  remainder  of  Section  37  of  the  Act  of  1832  is  covered  by  subse- 
quent sections  of  this  draft. 

12.  PURPARTS  UNEQUAL  IN  VALUE. 

(&)  When  equal  partition  in  value,  or  partition  in  accordance 
with  the  respective  interests  of  the  parties,  cannot  be  made  by 
the  said  commissioners  or  the  said  inquest,  they  shall  make  a 
just  appraisement  of  the  respective  purparts  or  shares  into  which 
they  may  divide  the  estate;  and  the  court  shall  award  that  one 


PARTITION  ACT— SECTIONS  (6),  (c)-io  13 

or  more  of  the  purparts  or  shares  shall  be  subject  to  the  pay- 
ment of  such  sum  or  sums  of  money  as  shall  be  necessary  to 
equalize  the  value  of  the  said  purparts,  according  to  the  said 
appraisement  thereof ;  which  sum  or  sums  of  money  shall  be 
paid  or  secured  to  be  paid,  by  the  several  persons  accepting  such 
purparts,  in  the  manner  prescribed  in  Section  17  hereof.  (See 
23-5,  infra.) 

NOTE.— This  is  Section  38  of  the  Act  of  March  29,  1832  (P.  L.  190) 
3  Purd.  3430,  which  was  new  in  that  act  and  was  intended  to  provide  for 
the  case  "where  partition  can  conveniently  be  made,  but  the  value  of  the 
shares  cannot  be  equal."  The  words  from  "or"  to  "parties"  in  lines  I 
and  2  have  been  added,  to  conform  to  Section  8  of  this  draft.  (See  10, 
supra.) 

The  second  clause  of  the  section,  relating  to  the  order  of  allotment  of 
the  purparts,  is  omitted  here,  being  covered  by  Section  13  (see  17-19, 
infra)  of  this  draft. 

13.  PURPARTS  NOT  EQUAL  IN  NUMBER  TO  NUM- 

BER OF  PARTIES  ENTITLED. 

(c)  When  such  estate  cannot  conveniently  be  divided 
into  shares  equal  in  number  to  the  number  of  parties  entitled, 
the  said  commissioners  or  the  said  inquest  shall  make  a  just 
appraisement  of  the  respective  purparts  or  shares  into  which 
they  may  divide  the  estate ;  and  the  parties  to  whom  such  shares 
shall  be  awarded,  or  some  one  in  their  behalf,  shall  pay  or  secure 
to  be  paid  to  the  other  parties  interested,  their  respective  parts 
of  the  value  thereof,  in  the  manner  prescribed  in  Section  17 
hereof.  Sec  23-25  infra.) 

NOTE. — This  is  Section  39  of  the  Act  of  March  29,  1832,  P.  I,.  190,  3 
Purd.  3431,  which  was  derived  in  substance  from  Section  22  of  the  Act  of 
April  19,  1794,  3  Sm.  L.  143.  In  line  2,  "shares  equal  in  number  to  the 
number  of"  has  been  substituted  for  "as  many  shares  as  there  are,"  the 
intention  being  to  cover  cases  where  the  number  of  purparts  exceeds  the 
number  of  parties,  as  well  as  where  there  are  fewer  purparts  than  there 
are  parties  entitled. 

The  portion  of  the  section  dealing  with  the  allotment  of  the  purparts 
is  omitted  here,  being  covered  by  Section  13  (see  17-19,  infra)  of  this 
draft. 

14.  VALUATION    OF    UNDIVIDED    INTEREST    OF 

DECEDENT. 

SECTION  10.  Where  the  decedent  shall  die  seized  or  possessed, 
as  tenant  in  common  or  joint  owner,  of  any  undivided  interest  in 


14  PARTITION  ACT— SECTIONS  10-11 

fee-simple  in  any  lands  or  tenements,  the  commissioners  or 
inquest  shall  value  and  return  such  interest,  undivided,  in  all 
cases;  and  if  such  decedent  had  other  real  estate,  such  interest 
shall  be  valued  and  returned,  either  by  itself,  or  in  connection 
with  some  other  portion  of  such  decedent's  real  estate,  as  one  of 
the  purparts  or  shares  into  which  they  shall  divide  the  whole  real 
estate;  and  upon  the  return  thereof,  the  proceedings  shall  be  as 
in  other  cases. 

NOTE. — This  is  the  last  part  of  Section  i  of  the  Act  of  March  13,  1847, 
P.  I*.  319,  3  Purd.  3424,  the  first  part  of  which  is  covered  by  Section  I 
(see  2  supra)  of  the  present  draft. 

In  line  8,  "valued"  is  omitted  before  "as  one  of." 

Under  this  section  of  the  act  it  is  incumbent  on  the  party  instituting 
the  proceedings,  if  practicable,  to  embrace  the  whole  of  the  undivided 
realty  within  the  jurisdiction  or  power  of  the  court.  There  cannot  be 
inquisitions  upon  it  by  parcels.  Where  a  person  dies  seized  in  severalty 
of  three  tracts  of  lands,  and  of  undivided  interests  in  two  others,  it  is 
error  to  file  one  bill  for  the  partition  of  the  land  held  in  severalty,  and 
another  for  that  of  the  undivided  interests.  Gilpin  v.  Brown,  268  Pa. 
398,  112  Atl.  124. 

15.  RULE  TO  ACCEPT  OR  REFUSE  THE  WHOLE 
OR  PURPARTS  AT  THE  VALUATION. 

SECTION  ii.  In  all  cases  of  appraisement  or  partition  men- 
tioned in  Sections  8  and  91  of  this  act,  -the  orphans'  court  shall 
on  application,  grant  a  rule  on  all  persons  interested,  including 
those  interested  in  remainder,  to  come  into  court,  at  a  certain 
day  to  be  fixed  by  the  court,  to  accept  or  refuse  the  estate,  or  a 
share  or  portion  thereof,  as  the  case  may  be.  A  copy  of  such 
rule  shall  be  served  upon  each  party  personally,  ten  days  before 
the  return  thereof,  in  case  such  party  resides  within  the  county, 
or  if  any  party  shall  reside  outside  the  county  the  court  may,  in 
its  discretion,  authorize  service  of  such  rule  upon  him  personally 
or  direct  such  publication  thereof  as  shall  appear  to  the  court 
to  be  reasonable  and  proper. 

NOTE. — This  is  founded  on  Section  40  of  the  Act  of  March  29,  1832 
(P.  L,.  190),  3  Purd.  3431.  Provisions  as  to  service  of  the  rule  similar  to 
those  in  Section  4  of  this  draft  have  been  inserted,  and  Section  8  of  the 
Act  of  April  7,  1807,  P.  L.  155  (4  Sm.  L.  398,  at  p.  401),  3  Purd.  3431. 
is  recommended  for  repeal. 


1(See  10-13  supra.) 


PARTITION  ACT— SECTIONS  11-12-13  (o)  15 

In  line  4,  "including  those  interested  in  remainder"  has  been  inserted, 
thus  incorporating  the  provisions  of  Section  46  of  the  Act  of  1832,  3  Purd. 
3432,  on  this  subject,  and  making  them  apply  to  cases  of  testacy  as  well 
as  intestacy.  In  line  5,  "fixed  by  the  court"  has  been  substituted  for  "by 
them  to  be  fixed,"  because  the  latter  words  might  well  be  taken  to  refer 
to  the  parties  and  not  to  the  court. 

Section  40  of  the  Act  of  1832  was  founded  on  Section  8  of  the  Act  of 
1807,  supra,  the  Commissioners  remarking  that  they  had  made  the  pro- 
visional general,  "applying  it  to  all  cases  of  appraisement  or  partition 
mentioned  in  the  preceding  sections."  Section  40,  however,  applies  only 
to  the  cases  mentioned  in  the  preceding  section;  the  draft  was  the  same. 
The  section  is,  therefore,  confined  to  the  cases  mentioned  in  Section  39 
of  the  Act  of  1832,  namely,  cases  where  the  estate  cannot  conveniently  be 
divided  into  as  many  shares  as  there  are  parties  interested.  It  is  now 
made  to  include  cases  where  partition  is  made,  where  no  division  is 
possible,  and  where  the  purparts  are  of  unequal  value. 

The  provision  as  to  service  or  publication  is  made  uniform  with  that  in 
Section  17  (&)  (see  24  infra)  of  this  draft. 

16.  BIDS  ABOVE  VALUATION. 

SECTION  12.  In  all  cases  of  partition  of  real  estate  now  pending 
or  hereafter  to  be  instituted,  in  any  orphans'  court,  wherein  a 
valuation  shall  have  been  made  or  shall  be  made  of  the  whole 
or  parts  thereof,  the  same  shall  be  allotted  to  such  one  or  more 
of  the  parties  in  interest,  whether  entitled  in  possession  or  in 
remainder  or  to  an  undivided  interest  for  life,  and  including  the 
surviving  spouse  of  the  decedent,  who  shall,  at  the  return  of  the 
rule  to  accept  or  refuse  to  take  at  the  valuation,  offer  in  writing 
the  highest  price  therefor  above  the  valuation  returned;  but  if 
no  higher  offer  be  made  for  such  real  estate  or  any  part  thereof, 
it  shall  be  allotted  or  ordered  to  be  sold  as  herein  provided. 

NOTE.— This  is  part  of  Section  i  of  the  Act  of  May  8,  1909,  P.  L.  489, 
6  Purd.  7052,  except  that  the  words  from  "whether  entitled"  to  "de- 
cedent" have  been  substituted  for  "widow." 

The  section  was  an  amendment  of  Section  10  of  the  Act  of  April  22, 
1856,  P.  L.  532,  3  Purd.  3453,  which  had  previously  been  amended  by  the 
Act  of  June  I,  1907,  P.  L.  364.  It  applies  to  the  common  pleas  as  well,  and 
is  to  be  repealed  only  so  far  as  it  relates  to  the  orphans'  court. 

17.  ALLOTMENT  IN  THE  ABSENCE  OF  BIDS;    OR- 

DER OF  CHOICE. 

SECTION  13.  (a)  When  no  bid  above  the  appraisement  of  such 
real  estate  or  any  part  thereof  shall  be  made  as  provided  in 


16  PARTITION  ACT— SECTION  13  (a) 

Section  I2l  of  this  act,  the  court  may  order  such  real  estate  or 
part  thereof  to  and  among  the  parties  in  interest,  including  those 
entitled  in  remainder,  as  follows: 

First. — To  the  surviving  spouse  of  the  decedent  if  entitled, 
under  the  intestate  law  or  under  the  will  of  the  decedent;  to  a 
share  of  such  real  estate  or  part  thereof  in  fee. 

Second. — To  the  other  parties  in  interest,  in  the  order  of  their 
seniority  in  age. 

NOTE. — This  clause  is  new.  The  inclusion  of  parties  entitled  in  re- 
mainder covers  the  provision  on  that  subject  in  Section  46  of  the  Act  of 
1832,  3  Purd.  3432.  The  inclusion  of  the  surviving  spouse,  entitled  in  fee, 
has  been  inserted  to  cover  cases  coming  under  the  operation  of  the  new 
Intestate  Act  and  cases  where  the  surviving  spouse  takes  an  interest  in 
fee  under  the  will  of  the  decedent. 

The  provision  as  to  seniority  in  age  is  substituted  for  the  provisions 
of  Section  37  of  the  Act  of  1832,  3  Purd.  3427,  which  related  only  to 
cases  of  intestacy,  and  was  derived  from  Section  22  of  the  Act  of  April 
19,  1794,  3  Sm.  L.  143,  and  of  Section  46  of  the  Act  of  1832,  3  Purd.  3432. 

Section  37  of  the  Act  of  1832  applied  only  to  cases  where  no  partition 
could  be  made.  Section  38,  3  Purd.  3430,  provided  for  allotment  of  pur- 
parts  where  the  value  of  the  purparts  was  unequal ;  and  Section  39,  3 
Purd.  3431,  covered  the  case  where  the  purparts  were  fewer  in  number 
than  the  parties  entitled.  The  present  section  of  this  draft  covers  all 
these  cases.  The  other  portions  of  Sections  37,  38  and  39  of  the  Act  of 
1832  have  been  incorporated  in  Section  9  of  this  draft.  (See  11-13  supra.) 

Section  37  of  the  Act  of  1832  provided  for  award  to  the  eldest  son  or 
if  he  was  dead  to  his  children,  if  any,  in  the  order  of  their  birth,  and 
preferring  males  to  females,  and  in  like  manner,  to  his  other  lineal 
descendants  in  the  same  order,  and  then  to  the  second  and  other  sons  and 
their  descendants,  and  finally  to  the  daughters  and  their  descendants  in 
the  same  manner. 

Section  46  of  the  Act  of  1832,  provides  that  "when  the  decedent  leaves 
no  lineal  descendants,  the  like  proceedings  shall  be  had  in  all  respects, 
on  the  application  of  the  persons  in  whom  the  estate  shall  vest  in  posses- 
sion." Whether  this  means  that  the  same  order  of  priority  is  to  be 
followed  as  among  lineal  descendants  seems  not  to  have  been  decided. 
Section  8  of  the  Act  of  April  4,  1797,  3  Sm.  L.  296,  covered  the  case  of 
the  brothers  and  sisters. 

The  Commissioners  are  of  opinion  that  it  is  better  to  adopt  the  simple 
rule  of  seniority  of  age  in  all  cases,  whether  the  persons  entitled  are 
lineal  descendants  or  other  relatives  of  the  decedent  taking  under  the 
Intestate  Law,  or  persons  taking  under  his  will,  who  may  or  may  not  be 
related  to  him. 

l(See  16  supra.) 


PARTITION  ACT— SECTIONS  13  (&),  (O-i4  17 

18.  OFFER    TO     NEXT    IN     SUCCESSION     WHERE 

PARTY  ENTITLED  FAILS  TO  APPEAR  OR  RE- 
FUSES TO  TAKE. 

(&)  In  case  the  party  entitled  to  a  choice  do  not  come  into 
court,  in  person  or  by  guardian  or  committee,  or  attorney  duly 
constituted,  or  in  case  he  shall  refuse  the  same,  a  record  shall  be 
made  thereof,  and  the  court  may  and  shall  direct  the  same  to  be 
offered  to  the  next  in  succession,  according  to  the  rules  provided 
in  clause  (a)  of  this  section. 

NOTE. — This  is  taken  from  the  last  part  of  Section  40  of  the  Act  of 
1832,  3  Purd.  3431. 

19.  ELECTION  TO  TAKE  REAL  ESTATE,  OR  SHARE 

THEREOF,  POSTPONES  PARTY  AS  TO  OTHER 
SHARES,  OR  AS  TO  REAL  ESTATE  IN  OTHER 
COUNTY. 

(c)  In  any  case  where  a  party  has  elected  to  take  the  real 
estate  of  a  decedent  in  one  county,  or  any  share  thereof,  if 
divided  into  shares,  such  party  shall  not  have  the  right  of 
preference  or  election  to  take  the  real  estate  or  any  share  thereof 
in  any  other  county,  or  any  other  share  in  the  same  county,  until 
all  the  other  parties  shall  have  neglected,  after  due  notice,  or 
refused  to  take  the  same  at  such  valuation. 

NOTE. — This  is  Section  45  of  the  Act  of  March  29,  1832,  P.  L.  190,  3 
Purd.  3432,  with  the  substitution  of  "a  party"  for  "one  of  the  heirs  of 
a  decedent." 

The  section  was  founded  on  Section  9  of  the  Act  of  April  7,  1807, 
P.  L.  155,  4  Sm.  L.  398  at  p.  401,  3  Purd.  3447,  which  is  recommended  for 
repeal. 

20.  PERMITTING  RESIDUE  OF  PREMISES  TO   RE- 

MAIN FOR  PARTIES  NOT  APPEARING. 

SECTION  14.  The  orphans'  court  having  jurisdiction  in  any 
case  of  partition  shall  have  power,  wherever  it  shall  appear  ad- 
visable and  proper,  to  cause  the  share  or  shares  of  the  party  or 
parties  appearing  in  court  to  be  allotted  and  assigned  to  them, 
and  to  permit  the  residue  of  the  premises  to  remain  for  the  person 
or  persons  entitled  thereto,  and  subject  to  a  future  partition 
among  them,  if  more  than  one  person  be  so  entitled. 

NOTE.— This  is  Section  10  of  the  Act  of  April  25,   1850,  P.  L.  571,  3 
Purd.  3453.     That  section  applies  to  the  common  pleas  as  well,  and  is 
recommended  for  repeal  only  so  far  as  relates  to  the  orphans'  court. 
2 


ig  PARTITION  ACT— SECTION  15 

21.    ALLOTMENT  TO  WIDOW  AS  HIGHEST  BIDDER. 

SECTION  15.  Where  the  real  estate,  or  any  part  thereof,  shall 
be  allotted  to  the  widow  as  the  highest  bidder,  two-thirds  of  the 
purchase  money  thereof,  in  cases  where  by  existing  laws  the 
widow  is  entitled  to  a  dower  of  one-third  in  the  real  estate,'  and 
one-half  of  the  purchase  money  thereof,  in  cases  where  by  exist- 
ing laws  the  widow  is  entitled  to  a  dower  of  one-half  in  the  real 
estate,  shall  be  paid  to  those  entitled  thereto,  as  provided  by  law; 
the  remaining  one-third  or  one-half  of  such  purchase  money  as 
the  case  may  be,  shall  be  paid  to  a  trustee  or  trustees  to  be 
appointed  by  the  court,  which  trustee  or  trustees  shall  give  bond 
in  double  the  amount  to  be  received;  the  trustee  or  trustees  as 
aforesaid,  shall  pay  semi-annually,  in  lieu  of  dower,  the  interest 
on  said  one-third  or  one-half  of  the  purchase  money,  as  the  case 
may  be,  to  the  widow  during  her  life,  and  at  her  death,  the  said 
trustee  or  trustees  shall  pay  the  purchase  money  to  such  persons 
as  are  entitled  by  law  thereto. 

NOTE. — This  is  the  remainder  of  Section  I  of  the  Act  of  May  8,  1909, 
P.  L.  489,  6  Purd.  7052.  See  note  to  Section  12  of  this  draft.  (See  16 
supra.) 

The  section  as  it  stands  will  cover  cases  of  widows  of  persons  dying 
before  the  new  Intestate  Act  goes  into  effect. 

"Shall  pay  semi-annually"  has  been  substituted  for  "be  paid  annually." 
Semi-annual  payments  are  recommended  for  the  convenience  of  the 
widow.  The  Act  of  June  I,  1907,  P.  L.  364,  read  "pay  annually."  The 
words  "be  paid  annually,"  which  are  obviously  incorrect,  were  intro- 
duced in  the  amendment  of  1909,  presumably  by  inadvertence. 

The  fact  that  the  Orphans'  Court  Partition  Act  of  1917,  (P.  L.  338) 
in  Sections  15,  18  and  29  appears  to  concede  to  the  widow  a  lesser  estate 
in  lands  of  the  decedent  than  that  conferred  by  the  Intestate  Act  of  1917 
(P.  L.  431)  approved  the  same  day,  does  not  in  any  way  affect  the 
quantum  of  the  estate  taken  by  the  widow  under  the  latter  act.  If  there 
were  any  conflict  between  the  two  Acts,  the  Intestate  Act  must  govern 
as  to  the  interest  taken,  the  Partition  Act  having  to  do  merely  with 
procedure,  and  the  enforcement  of  rights  conferred  by  the  Intestate  Act. 
But  the  alleged  conflict  is  only  apparent,  and  the  references  in  the 
Partition  Act  to  the  life  estate  of  the  widow  are  evidently  intended  to 
refer  to  estates  of  persons  dying  prior  to  the  Intestate  Act  of  1917. 

"The  cited  portions  of  the  said  Orphans'  Court  Partition  Act  of  1917, 
P-  L.  337  (i5,  J8  and  29)  do  not  and  are  not  designed  to,  diminish  such 
fee  simple  share,  part  or  interest  so  prescribed  for  the  widow  in  and  by 
the  said  Wills  Act  and  Intestate  Act. 

"It  is  the  Intestate  Laws  of  the  commonwealth  which  determine  all 
matters  pertaining  to  the  descent  and  inheritance  of  estates  of  decedents, 


PARTITION  ACT— SECTION  15  19 

fixing  the  character,  kind,  quantity  and  amount  of  the  interests  or  shares 
in  decedents'  real  and  personal  property  which  shall  pass  to  and  vest  in 
surviving  spouses  and  kinsmen.  The  Partition  Acts  merely  provide  the 
method  for  enforcing  the  rights  so  conferred  by  the  Intestate  Acts. 
Hence,  it  follows  that  on  general  principles,  were  there  indeed  a  clash  or 
conflict  between  the  provisions  of  the  Intestate  Act  of  1917,  P.  L.  429 
and  of  the  Orphans'  Court  Partition  Act  of  1917,  P.  L.  337,  on  a  matter 
of  quantity,  size,  amount  of  shares  or  interests  of  a  decedent's  estate  to 
descend  or  vest,  the  latter  statute  (merely  prescribing  procedure)  would 
of  necessity,  yield  to  the  former  statute  as  to  matters  so  lying  exclusively 
within  the  scope  and  province  of  the  said  Intestate  Act. 

However,  the  respondent,  in  its  answer,  has  not  directed  our  attention 
to  or  shown  that  there  really  exists  any  clash  or  conflict  between  the  two 
statutes  under  consideration.  By  its  express  terms,  the  Intestate  Act  of 
1917,  P.  L.  429  becoming  operative  and  effective  on  December  31,  1917, 
is  made  to  apply  to  estates,  real  and  personal  of  all  persons  dying  intestate 
on  or  after  the  said  day  so  designated;  expressly  providing  that  as  to  the 
estates,  real  and  personal,  of  persons  dying  before  the  day  designated, 
the  existing  laws  should  remain  in  full  force  and  effect.  Under  Section  I 
of  the  Act  of  April  8,  1833,  P.  L.  316,  which  applies  to  and  controls  the 
devolution  of  estates  of  intestates  dying  before  December  31,  1917,  a 
surviving  widow  was  entitled  to  certain  interests  in  her  husband's  real 
estate  for  life  only,  to  wit,  so-called  statutory  dower,  i.  e.  a  life  estate  in 
a  third  or  a  half  part  of  such  lands,  depending  on  whether  the  decedent 
had  left  any  children  or  issue.  The  Intestate  Act  of  1917,  P.  L.  429  gives 
the  widow  of  an  intestate  dying  on  or  after  December  31,  1917,  not 
statutory  dower  as  under  the  old  law,  but  certain  interests  in  fee  simple 
in  the  decedent's  real  estate,  to  wit,  an  undivided  one-third  part  thereof 
or  an  undivided  half  part  thereof  or  more,  depending  on  whether  or  not 
the  decedent  leaves  children  or  issue,  and  if  so,  the  number  thereof. 
The  Orphans'  Court  Partition  Act  had  to  be  drafted  by  the  law  makers 
to  meet  the  circumstances  and  requirements  of  estates  of  all  intestates, 
to  wit,  those  dying  before,  as  well  as  those  dying  after  December  31,  1917, 
for  such  Act  was  to  apply  to  estates  of  decedents  entirely  irrespective  of  the 
dates  of  their  respective  deaths.  Now,  as  to  widows  of  intestates  dying 
after  December  31,  1917,  no  special  mention  of  the  shares  of  such  widows 
therein  was  in  such  act  necessary;  for,  thereunder  surviving  spouses 
taking  shares  in  fee,  such  shares  are  of  precisely  the  same  character  and 
quality  as,  and,  therefore,  fall  in  the  same  category  with  the  other  shares 
and  interests  vesting  in  the  decedent's  descendants  or  collateral  kinsmen. 
The  said  Act,  however,  had  to  make  and  preserve  special  provision  for 
the  statutory  dower  of  widows  of  husbands  dying  prior  to  December  31, 
1917,  which  circumstance  accounts  for  and  explains  the  use  of  the  pointed 
out  language  appearing  in  Sections  15,  18  and  29  of  the  said  Act.  The 
purpose  and  necessity  for  such  provisions  and  language  is  manifest,  to 
wit,  being  designed  and  required  to  provide  for  the  life  interests  of 
widows  in  estates  of  intestates  dying  before  December  31,  1917,  and  in 
estates  of  testates  dying  before  said  date,  where  the  widows  elect  to  take 
against  the  wills  of  their  respective  husbands.  Accordingly  we  reach  the 


20  PARTITION  ACT— SECTIONS  15-16-17  (o)     . 

conclusion  that  there  exists  no  clash  or  conflict  between  the  provisions  of  the 
Orphans'  Court  Partition  Act  of  1917,  P.  L.  337  and  the  Intestate  Act  of 
1917,  P.  L.  429;  at  least,  as  to  any  matter  to  which  the  petitioner  has  directed 
our  attention.  It  is  well  to  observe  moreover  in  passing  that  did  indeed 
such  conflict  exist  between  the  provisions  of  the  two  statutes  under  con- 
sideration, the  provisions  of  the  Orphans'  Court  Partition  Act  of  -1917, 
P-  L.  337,  aside  from  its  being  a  mere  possessory  action,  would,  for  an- 
other important  reason,  be  legally  forced  to  yield  to  the  pertinent  pro- 
visions of  the  Intestate  Act  of  1917,  P.  L.  429  as  to  all  matters  within  the 
scope  of  the  last  mentioned  statute;  for,  the  latter  Act,  although  approved 
the  same  day  as  the  former  Act  became  operative  long  after  the  said 
Orphans'  Court  Partition  Act  had  become  law ;  so  that  the  Intestate  Act 
thus  later  becoming  operative,  would  automatically  and  of  necessity 
supersede  such  provisions  of  the  Partition  Act,  if  any,  in  conflict  with 
the  provisions  of  the  said  Intestate  Act'  Per  Hughes,  P.  J.,  in  Dodd's 
Estate,  i  Wash.  236. 

22.  PARTITION  TO  BE  FIRM  AND  STABLE  AFTER 

FINAL  DECREE. 

SECTION  16.  Upon  return  made  by  commissioners  appointed 
by  agreement  of  the  parties,  or  of  the  inquisition  taken,  or  when 
the  real  estate  or  any  purpart  thereof  is  awarded  or  allotted  by 
the  court,  and  a  final  decree  is  entered,  the  partition  thereby 
made  shall  be  firm  and  stable  forever,  subject  only  to  the  right 
of  appeal. 

NOTE. — This  supplies  the  last  part  of  Section  36  of  the  Act  of  1832, 
3  Purd.  3418,  which  provides  that  on  return  by  the  commissioners  or 
inquisition  the  court  shall  have  power  to  give  judgment  that  the  partition 
thereby  made  be  firm  and  stable  forever.  The  provision  of  that  section 
as  to  costs  is  covered  by  Section  35  of  this  draft  (see  45-6  infra). 

23.  OWELTY;    PAYMENT  OR  SECURITY. 

SECTION  17.  (a)  In  every  case  provided  for  in  Section  12  or 
Section  13  of  this  act1,  the  party  bidding  in  or  accepting  the  real 
estate,  or  some  one  on  his  behalf,  shall  pay  to  the  other  parties 
interested  their  proportional  parts  of  the  value  of  such  estate, 
according  to  the  amount  of  the  bid,  or  the  just  appraisement 
thereof,  made  in  manner  aforesaid,  as  the  case  may  be,  or  shall 
give  good  security  by  recognizance,  or  otherwise,  to  the  satis- 
faction of  the  court,  for  the  payment  thereof,  with  legal  interest, 
at  such  time  or  times  as  in  the  judgment  of  the  court  shall  be  to 

1See  16-19,  supra. 


PARTITION  ACT— SECTION  17  (a),  (&)  2I 

the  advantage  of  those  entitled  to  the  estate ;  and  the  persons  to 
whom  or  for  whose  use  payment  or  satisfaction  shall  be  so  made, 
in  any  of  the  cases  aforesaid,  for  the  respective  parts  or  shares 
of  such  real  estate,  shall  be  forever  barred  of  all  right  or  title  to 
the  same. 

NOTE. — This  is  the  last  part  of  Section  37  of  the  Act  of  March  29, 
1832,  P.  L.  201,  3  Purd.  3428,  extended  to  all  cases  covered  by  Sections  12 
and  13  of  this  draft  (see  16-19,  supra)  instead  of  those  cases  only  which 
are  covered  by  Section  13.  The  provision  of  Section  i  of  the  Act  of  May  8, 
1876,  P.  L.  140,  3  Purd.  3432,  has  been  substituted  for  the  words  "in  some 
reasonable  time,"  not  exceeding  twelve  months,  as  the  court  may  direct," 
after  the  words  "with  legal  interest."  Section  i  of  the  Act  of  1876  is 
recommended  for  repeal. 

Where  the  bidder  is  ready  and  willing  to  make  payment  to  the  parties 
in  interest  in  full  as  soon  as  the  necessary  searches  against  the  title  can 
be  procured,  exceptions  relating  to  making  payment  on  account  or  the 
entry  of  security  will  be  dismissed  with  leave  to  apply  to  the  court  for 
a  further  order  if  payment  in  full  is  not  made  within  sixty  days. 
Battersby's  Estate,  29  Dist.  221. 

24.     ENFORCEMENT    OF   PAYMENT   BY   NON-RESI- 
DENT. 

(&)  Where  the  court  shall  decree  any  share  or  shares  to  any 
person  not  residing  within  this  commonwealth,  with  the  pay- 
ment of  owelty  annexed,  it  shall  be  lawful  for  the  court,  upon 
application  made  by  any  party  lawfully  interested  in  the  same, 
to  order  a  rule  upon  such  party,  his  or  her  legal  heirs  or  repre- 
sentatives, requiring  the  payment  of  said  owelty,  at  such  time 
and  upon  such  terms  and  conditions  as  the  court  shall  direct.  If 
the  said  rule  cannot  be  served  within  this  commonwealth,  the 
court  may,  in  its  discretion,  authorize  service  of  such  rule  upon 
him  or  them  personally  or  direct  such  publication  thereof  as  shall 
appear  to  the  court  to  be  reasonable  and  proper.  Upon  return 
and  proof  of  service  or  publication  as  aforesaid,  and  upon  refusal 
or  neglect  to  comply  with  the  said  rule,  the  court  may  enforce 
the  same  by  ordering  a  sale  of  such  share  or  shares,  for  the  pur- 
poses aforesaid,  as  in  other  cases  of  sales  under  this  act. 

NOTE. — This  is  Section  I  of  the  Act  of  April  6,  1844,  P.  L.  214,  3  Purd. 
3432.  The  provision  as  to  service  by  publication  in  the  Act  of  1844  is  by 
reference  to  Section  i  of  the  Act  of  March  26,  1808,  P.  L.  144,  4  Sm.  L. 
518,  3  Purd.  3408,  which  relates  to  actions  of  partition  and  provides  for  pub- 
lication in  one  daily  newspaper  of  the  City  of  Philadelphia  as  well  as  in  a 
newspaper  in  the  county  where  the  land  lies.  The  reference  at  the  end  of 
Section  i  of  the  Act  of  1844  is  to  the  Act  of  March  29,  1832. 


22  PARTITION  ACT— SECTIONS  17  (&),  (c)-i8  (a) 

Provisions  for  service  outside  of  the  state,  similar  to  those  in  Section 
5  (see  7  supra)  of  this  draft,  and  for  publication,  as  in  Section  n 
(see  15  supra)  have  been  added. 

25.  APPOINTMENT    OF    TRUSTEE    FOR    PARTIES 

WHO  ARE  UNKNOWN,  OR  CANNOT  BE  FOUND. 

(c)  Wherever  it  shall  appear  that  any  party  or  parties,  in 
whose  favor  a  lien  exists  until  payment  be  made  to  them  of  their 
respective  shares  of  the  money  due  from  the  party  or  parties  to 
whom  the  real  estate  or  any  purpart  thereof  is  awarded  at  the 
appraisement  or  at  a  price  bid  therefor  above  the  appraisement, 
is  or  are  unknown  or  cannot  be  found,  the  court  shall  have  power 
to  appoint  a  trustee  to  whom  the  shares  of  money  due  said  un- 
known or  other  party  may  be  paid,  with  power  in  said  trustee, 
upon  payment  to  him  of  said  money,  to  satisfy  said  lien  upon 
the  proper  records,  whereupon  the  said  land  shall  be  freed  and 
discharged  from  said  lien.  Such  trustee  shall  first  file  a  bond, 
to  be  approved  by  the  court,  conditioned  for  the  faithful  appli- 
cation of  the  money  to  him  so  paid,  as  aforesaid,  according  to 
the  trust  and  order  of  court.  It  shall  be  the  duty  of  the  trustee 
to  invest  the  said  moneys  in  securities  authorized  by  law. 

NOTE. — This  is  Section  i  of  the  Act  of  April  3,  1903,  P.  L.  151,  3  Purd. 
3454,  except  that  the  second  proviso  has  been  added. 

Section  2  of  the  Act  of  1903  is  a  general  repealer.  The  Act  of  1903 
applies  also  to  proceedings  in  the  common  pleas  and  is  recommended 
for  repeal  only  so  far  as  relates  to  the  orphans'  court. 

26.  WIDOW'S  INTEREST;    TO  REMAIN  CHARGED 

ON  THE  PREMISES. 

SECTION  18.  (a)  Should  the  widow  of  the  decedent  be  living  at 
the  time  of  the  partition  and  entitled  to  a  life  estate  in  one-half 
or  one-third  of  the  real  estate  under  the  intestate  laws,  or  should 
such  widow  elect  to  take  against  the  will  of  the  decedent  and 
thereby  be  entitled  to  such  life  estate,  she  shall  not  be  entitled  to 
payment  of  the  sum  at  which  her  purpart  or  share  of  the  estate 
shall  be  valued,  but  the  same,  together  with  interest  thereof, 
shall  be  and  remain  charged  upon  the  premises,  if  the  whole  be 
taken  by  one  person,  or  upon  the  respective  shares,  if  divided  as 
hereinbefore  mentioned,  and  the  legal  interest  thereof  shall  be 
semi-annually  and  regularly  paid  by  the  persons  to  whom  such 
real  estate  shall  be  adjudged,  their  heirs  or  assigns,  holding  the 
same,  according  to  their  respective  portions,  to  the  said  widow, 


PARTITION  ACT— SECTION  18  (a),   (6)  23 

during  her  natural  life,  in  lieu  and  full  satisfaction  of  her  dower 
at  common  law,  and  the  same  may  be  recovered  by  the  widow  by 
distress  or  otherwise,  as  rents  in  this  commonwealth  are  recover- 
able. On  the  death  of  the  widow,  the  said  principal  sum  shall 
be  paid  by  the  persons  to  whom  the  said  real  estate  shall  have 
been  adjudged,  their  heirs  or  assigns,  holding  the  premises,  to 
the  persons  thereunto  legally  entitled. 

NOTE. — This  is  Section  41  of  the  Act  of  March  29,  1832,  P.  L.  202,  3  Purd. 
3433.  with  the  insertion  of  language  to  make  it  apply  only  to  cases  of  dece- 
dents dying  before  the  new  Intestate  Act  goes  into  operation,  and  the 
substitution  of  "persons"  for  "child  or  other  descendant." 

The  section  was  derived  from  Section  22  of  the  Act  of  April  19,  1794, 
3  Sm.  L,.  143,  and  Section  6  of  the  Act  of  April  7,  1807,  P.  L,.  155,  4  Sm. 
L.  398  at  p.  400.  The  latter  section  is  printed  in  the  Digests,  but  since  it 
seems  to  have  been  supplied  by  the  Act  of  1832,  its  express  repeal  is  now 
recommended. 

The  fact  that  the  Orphans'  Court  Partition  Act  of  1917  (P.  L.  338)  in 
Sections  15,  18  and  29  appears  to  concede  to  the  widow  a  lesser  estate  in 
lands  of  the  decedent  than  that  conferred  by  the  Intestate  Act  of  1917 
(P.  L.  429)  approved  the  same  day,  does  not  in  any  way  affect  the 
quantum  of  the  estate  taken  by  the  widow  under  the  latter  act.  If  there 
were  any  conflict  between  the  two  Acts,  the  Intestate  Act  must  govern 
as  to  the  interest  taken,  the  Partition  Act  having  to  do  merely  with 
procedure  and  the  enforcement  of  rights  conferred  by  the  Intestate  Act. 
But  the  alleged  conflict  is  only  apparent,  and  the  references  in  the 
Partition  Act  to  the  life  estate  of  the  widow  are  evidently  intended  to 
refer  to  estates  of  persons  dying  prior  to  the  Intestate  Act  of  1917. 

Dodd's  Estate,  i  Wash.  236.  (See  extract  from  opinion  under  Section 
21,  supra.) 

27.    CHARGING  WIDOW'S  INTEREST  ON  PARTICU- 
LAR PURPARTS. 

(6)  When  the  real  estate  of  any  decedent  shall  consist  of 
several  different  tracts  or  pieces  of  land,  and  the  same  shall  be 
adjudged  to  any  of  the  parties  entitled  thereto,  or  ordered  to  be 
sold,  by  any  orphans'  court,  such  court  shall  have  authority  to 
decree  that  the  share  or  purpart  of  the  widow  of  such  decedent 
in  the  whole  of  said  real  estate,  where  such  widow  is  entitled  to 
a  life  interest,  together  with  the  interest  thereof,  shall  be  and 
remain  charged  on  one  or  more  of  the  said  tracts  or  pieces  of 
land,  in  the  manner  and  for  the  purposes  now  provided  by  law, 
and  that  the  remaining  tracts  or  pieces  of  land  shall  be  wholly 
discharged  from  the  share  or  purpart  of  such  widow,  or  any 
part  thereof :  Provided,  That  the  pieces  or  tracts  of  land,  upon 


24  PARTITION  ACT— SECTIONS  18  (6) -19-20 

which  such  purpart  or  share  shall  be  so  charged  as  aforesaid, 
shall,  in  the  opinion  of  such  court,  be  fully  sufficient  to  secure 
the  payment  of  the  principal  and  interest  of  such  purpart  or 
share:  And  provided  further,  That  such  widow  shall  have  the 
same  remedies  for  recovery  of  her  interest  as  are  provided  in 
clause  (a)  of  this  section. 

NOTE.— This  is  Section  I  of  the  Act  of  January  7,  1867,  P.  L.  1367,  3 
Purd.  3435,  with  the  insertion  of  the  words,  "where  such  widow  is  entitled 
to  a  life  interest,"  to  show  that  the  section  will  apply  only  to  cases  where 
the  decedent  has  died  or  shall  die  before  the  new  Intestate  Act  goes  into 
effect. 

28.  OTHER   UNDIVIDED   INTERESTS   TO    REMAIN 

CHARGED  ON  REAL  ESTATE. 

SECTION  19.  Should  any  person  other  than  the  widow  of  the 
decedent  be  entitled,  under  the  intestate  laws,  or  should  any 
person,  including  the  widow  of  the  decedent,  be  entitled  under 
the  will  of  the  decedent,  to  a  life  interest  in  an  undivided  share 
of  the  real  estate,  the  share  of  such  tenant  for  life  shall  not  be 
paid  to  him  or  her,  but  the  same,  together  with  interest  thereof, 
shall  be  and  remain  charged  upon  the  premises,  if  the  whole  be 
taken  by  one  person,  or  upon  the  respective  shares,  if  divided  as 
hereinbefore  mentioned,  and  the  legal  interest  thereof  shall  be 
semi-annually  and  regularly  paid  by  the  persons  to  whom  such 
real  estate  shall  be  adjudged,  their  heirs  or  assigns,  holding  the 
same,  according  to  their  respective  portions,  to  the  said  tenant 
for  life,  during  his  or  her  natural  life,  and  the  same  may  be 
recovered  by  such  life  tenant  as  debts  of  like  nature  in  this  com- 
monwealth are  recoverable.  On  the  death  of  the  life  tenant,  the 
said  principal  sum  shall  be  paid  by  the  persons  to  whom  the  said 
real  estate  shall  have  been  adjudged,  their  heirs  or  assigns, 
holding  the  premises,  to  the  persons  thereunto  legally  entitled. 

NOTE. — This  is  a  new  section,  making  provisions  for  other  undivided 
life  interests  similar  to  those  made  by  Section  18  (a)  (see  26  supra)  for 
widows,  except  that  the  remedy  for  collection  is  made  the  same  as  the 
remedy  for  recovery  of  "debts  of  like  nature." 

29.  DEDUCTION  OF  RENTAL  VALUE  FROM  SHARES 

OF  PARTIES  WHO  HAVE  BEEN  IN  POSSES- 
SION. 

SECTION  20.  In  case  of  partition  of  real  estate  now  or  here- 
after held  by  two  or  more  persons  as  tenants  in  common,  where 
one  or  more  of  said  tenants  shall  have  been  or  shall  hereafter  be 


PARTITION  ACT— SECTIONS  20-21  25 

in  possession  of  said  real  estate,  the  parties  in  possession  shall 
have  deducted  from  their  distributive  shares  of  said  real  estate 
the  proportional  part  of  the  rental  value  thereof  to  which  their 
co-tenant  or  co-tenants  are  entitled  for  the  time  such  real  estate 
shall  have  been  in  possession  as  aforesaid. 

NOTE. — This  incorporates  so  much  of  Section  i  of  the  Act  of  June  24, 
1895,  P.  L.  237,  3  Purd.  3454,  as  relates  to  partition.  The  other  part  of 
the  section  gives  a  remedy  for  such  rentals  by  action  between  co-tenants. 
The  section  is  recommended  for  repeal  only  so  far  as  relates  to  the 
orphans'  court. 

Exceptions  filed  to  a  decree  because  it  made  no  provision  for  the 
ascertainment  of  rental  values  of  the  premises  allotted  and  the  mesne 
profits  of  the  business  there  conducted  during  the  occupancy  of  the 
premises  by  one  of  the  parties  in  interest  were  dismissed  where  there 
were  no  facts  before  the  court  upon  which  to  base  an  appropriate  finding 
and  where,  from  facts  assumed  from  argument  of  counsel  there  would 
seem  to  be  no  reason  why  the  parties  in  interest  should  not  be  able  to 
reach  an  amicable  adjustment;  with  leave  to  apply  by  petition  for 
necessary  relief  if  later  required.  Battersby's  Estate,  29  Dist.  221. 

30.    RULE  TO  SHOW  CAUSE  WHY  SALE  SHOULD 
NOT  BE  MADE;   DECREE  OF  SALE. 

SECTION  21.  Upon  an  appraisement  or  valuation  of  real  estate 
made  as  provided  in  Section  9  or  Section  10  of  this  act,  should 
all  the  parties  neglect,  after  due  notice,  as  provided  in  Section  n 
hereof,  or  refuse  to  take  the  same  or  any  part  thereof  at  the 
valuation,  or  to  bid  above  the  appraisement  as  provided  in  Sec- 
tion I21  hereof,  the  court  shall,  on  the  application  of  any  one 
of  the  parties,  grant  a  rule  upon  the  other  parties  interested,  to 
show  cause  why  the  estate,  or  part  thereof,  so  appraised  and  not 
taken  at  the  appraisement  or  bid  for,  should  not  be  sold;  which 
rule  shall  be  returnable  at  such  time  as  the  court,  having  respect 
to  the  circumstances  of  the  case,  may  direct ;  and  service  of  such 
rule  shall  be  made  in  the  manner  provided  by  law  for  the  service 
of  citations  in  the  orphans'  court.  On  the  return  of  such  rule, 
the  court  may,  on  due  proof  of  notice  to  all  persons  interested, 
make  a  decree  authorizing  and  requiring  the  executor  or  admin- 
istrator, as  the  case  may  be,  to  expose  such  real  estate,  or  part 
thereof,  to  public  sale,  at  such  time  and  place,  and  on  such  terms 
as  the  court  may  decree :  Provided,  That  the  rule  to  show  cause 
herein  directed  may  be  dispensed  with  by  the  court,  on  the 


1(See  11-16  supra.) 


26  PARTITION  ACT— SECTIONS  21-22 

application  of  all  the  parties  in  interest,  if  of  full  age  and  sui 
juris,  and  of  the  guardians  or  committees  of  such  as  are  weak- 
minded  persons  for  whom  guardians  have  been  appointed,  minors, 
lunatics  or  habitual  drunkards,  for  such  decree ;  and  public  notice 
of  such  sale  shall  be  given  by  the  person  who  is  to  make  the  sale, 
once  a  week  for  a  period  of  three  weeks  before  the  day  appointed 
therefor,  by  advertisement  in  at  least  one  newspaper  published  in 
the  county,  if  there  be  one,  or,  if  there  be  none,  then  in  an 
adjoining  county;  and  in  all  cases,  notice  shall  also  be  given  by 
handbills,  one  of  which  shall  be  posted  at  a  conspicuous  place  on 
the  real  estate  proposed  to  be  sold,  and  at  least  three  of  which 
shall  be  posted  at  three  of  the  most  public  places  in  the  vicinity 
of  such  estate;  and  in  any  case  the  court  may,  by  general  rule 
or  special  order,  require  such  further  notice  as  it  shall  deem 
advisable. 

NOTE. — This  is  Section  42  of  the  Act  of  March  29,  1832,  3  Purd.  3438, 
which  was  founded  on  Section  I  of  the  Act  of  April  2,  1804,  P.  X,.  459, 
4  Sm.  L.  183-4,  and  Section  2  of  the  Act  of  March  26,  1808,  P.  L.  144,  4 
Sm.  L.  518-9,  the  provision  for  making  the  rule  returnable  later  than  the 
next  regular  session  of  the  court  being  new  in  the  Act  of  1832. 

The  changes  now  suggested  are  to  modify  the  language  so  as  to  include 
cases  where  there  is  a  division  into  fewer  purparts  than  parties  entitled 
(now  covered  by  Section  7  of  the  Act  of  April  7,  1807,  P.  L,.  155,  4  Sm.  L. 
398  at  p.  400,  3  Purd.  3440),  and  cases  of  failure  or  refusal  to  take  some 
purparts  (now  covered  by  Section  i  of  the  Act  of  April  15,  1845,  P.  L. 
458,  3  Purd.  3440)  ;  to  substitute  "parties"  for  "heirs,"  in  line  3  and  other 
places ;  to  insert  the  provisions  as  to  lunatics,  etc. ;  to  substitute  a  new 
provision  as  to  service  of  the  rule;  and  to  add,  at  the  end,  provisions  for 
notice  of  sale  similar  to  those  in  Section  16  (g)  (see  438  infra)  of  the 
Fiduciaries  Act. 

The  Act  of  June  12,  1893,  P.  L.  461,  3  Purd.  3447,  and  the  amendment 
of  May  23,  1913,  P.  L.  304,  6  Purd.  7051,  relating  to  sales  of  real  estate 
for  the  purpose  of  distribution  on  petition  of  all  parties  in  interest,  are 
covered  by  Section  23  (see  32-3  infra)  of  the  present  draft. 

31.  COMBINATION  OF  RULE  TO  ACCEPT  OR  RE- 
FUSE WITH  RULE  TO  SHOW  CAUSE  WHY 
SALE  SHOULD  NOT  BE  MADE. 

SECTION  22.  In  all  cases  of  the  partition  or  valuation  of  real 
estate,  the  orphans'  court  may,  upon  the  application  of  any 
party  in  interest,  instead  of  the  separate  rules  herein  provided 
for  such  cases,  grant  a  rule  upon  the  parties  interested  to  appear, 
and  accept  or  refuse  the  said  real  estate  at  the  valuation,  or,  in 
case  they  or  any  of  them  should  neglect  or  refuse  to  take  and 


PARTITION  ACT— SECTIONS  22-23  (a)  27 

accept  the  same  as  aforesaid,  show  cause  why  the  said  real  estate, 
or  any  part  thereof,  should  not  be  sold. 

Nore.— This  is  Section  2  of  the  Act  of  April  25,  1850,  P.  L.  569,  3  Purd. 
3440,  except  that  "any  party  in  interest"  is  substituted  for  "any  of  the 
heirs  of  the  decedent"  after  "the  application  of  the  widow,"  and  "herein 
provided  for"  is  substituted  for  "heretofore  issued  in,"  after  "separate 
rules." 

32.  SALES  FOR  THE  PURPOSE  OF  DISTRIBUTION, 
ON  PETITION  OF  ALL  PARTIES'  INTEREST; 
IN  GENERAL. 

SECTION  23.  (a)  Whenever  any  person  shall  die  seized  of  real 
estate,  and  the  parties  in  interest  desire  the  same  to  be  converted 
into  money  for  distribution,  it  shall  be  lawful  for  the  orphans' 
court  of  the  proper  county,  in  its  discretion,  upon  the  joint 
petition  of  the  widow  and  heirs,  or  devisees,  and  the  guardians 
or  committees  of  such  as  are  minors  or  under  disability,  in  whom 
the  real  estate  of  the  decedent  shall  have  vested  by  descent  or 
will,  and  legatees  who§e  legacies  are  charged  on  said  real  estate, 
or  the  representatives  of  such  as  may  be  deceased  or  under 
disability,  to  order  the  executor  or  administrator,  or  a  trustee 
to  be  appointed  by  said  court,  to  make  sale  of  said  real  estate. 
Such  petition  shall  set  forth  the  description  of  the  property,  the 
desire  to  have  the  same  sold,  and  its  estimated  value  according 
to  the  affidavits  of  two  disinterested  and  competent  persons,  and 
said  petition  shall  be  duly  sworn  to.  Said  order  shall  provide 
that,  before  making  sale,  the  executor,  administrator  or  trustee 
shall  give  bond,  in  double  the  estimated  value  of  the  said  real 
estate,  and  shall  proceed  thereafter  in  all  respects  in  the  manner 
provided  by  this  act  in  cases  of  the  sale  of  real  estate  under 
proceedings  in  partition.  The  proceeds  of  such  sale,  after  pay- 
ment of  the  expenses  thereof,  shall  be  distributed  to  and  among 
those  entitled  thereto,  the  same  as  real  estate.  Such  sale  shall 
have  the  same  effect  in  all  respects  as  a  public  sale  in  proceedings 
in  partition  of  real  estate  under  this  act. 

NOTE.— This  is  Section  i  of  the  Act  of  June  12,  1893,  P-  L.  461,  3  Purd. 
3447,  as  amended  by  the  Act  of  May  23,  1913,  P.  L.  304,  6  Purd.  7051,  with 
further  changes. 

The  Act  of  May  14,  1874,  P-  L.  166,  i  Purd.  1120,  relating  to  real  estate 
valued  at  not  more  than  one  thousand  dollars,  is  supplied  by  the  Act  of 
1893  and  should  be  repealed.  The  Act  of  1874,  however,  has  been  fol- 
lowed in  the  new  draft  as  to  the  provision  that  the  petition  shall  set 


28  PARTITION  ACT— SECTIONS  23  (a),  (fr)-24 

forth  the  estimated  value  of  the  property,  and  that  this  estimate  shall  be 
supported  by  the  affidavits  of  disinterested  persons. 

The  Act  of  1874  provided  that  the  proceedings  should  be  the  same  as 
those  in  cases  of  sales  for  payment  of  debts.  The  Commissioners  con- 
sider that  the  reference  to  proceedings  in  partition  is  more  appropriate. 

In  the  new  draft,  the  words  "or  devisees"  have  been  inserted  in  jine  6; 
the  words  "or  under  disability"  have  been  inserted  in  line  u;  the  words 
"to  be  appointed  by  said  court"  have  been  inserted  after  "trustee"  in  line 
12;  and  "estimated"  has  been  substituted  for  "appraised"  in  line  19.  The 
order  of  the  clauses  has  also  been  altered  for  the  sake  of  clearness. 

Where  an  intestate  left  him  surviving  no  widow,  and  five  minor  children 
as  his  sole  heirs  at  law,  they  having  but  one  guardian,  a  petition  by  said 
minors,  through  such  guardian,  is  their  joint  petition  within  the  meaning 
of  the  act.  Fogelsanger's  Estate,  267  Pa.  321.  no  Atl.  172. 

33.  LANDS  IN  DIFFERENT  COUNTIES. 

(&)  When  the  lands,  in  respect  to  which  a  petition  for  sale 
shall  be  filed  under  the  provisions  of  clause  (a)  of  this  section, 
shall  lie  in  one  or  more  adjoining  tracts  in  different  counties,  or 
shall  lie  in  two  or  more  counties,  but  not  in  adjoining  tracts,  the 
proceedings  shall  be  in  the  courts  designated  in  Sections  37  and 
38l  of  this  act,  respectively. 
NOTE. — This  clause  is  new. 

1(See  50-56  infra.) 

34.  APPOINTMENT  OF  TRUSTEE  TO  MAKE  SALE. 

SECTION  24.  Whenever  any  real  estate  shall  be  ordered  to  be 
sold  under  proceedings  in  partition,  the  orphans'  court  is  hereby 
authorized  and  required,  in  case  of  the  neglect  or  refusal  of  the 
executor  or  administrator  to  execute  such  order,  or  in  case  there 
be  no  executor  or  administrator,  or  in  case  the  court  for  any 
reason  deems  it  advisable,  to  appoint  some  suitable  person  trustee 
for  the  purpose  of  making  such  sale,  who  shall  be  subject  to  the 
same  restrictions,  and  have  the  same  powers,  and  whose  proceed- 
ings shall  have  the  same  effect,  to  all  intents  and  purposes,  as 
are  provided  in  the  case  of  such  sales  by  executors  or  ad- 
ministrators. 

NOTE. — This  is  Section  44  of  the  Act  of  February  24,  1834,  P.  L.  81,  3 
Purd.  3439,  which  was  not  included  in  the  draft  prepared  by  the  Com- 
missioners of  1830. 

The  words  "or  in  case  the  court  for  any  reason  deems  it  advisable" 
have  been  inserted  in  order  to  confer  upon  the  court  a  discretion  which, 
it  has  been  held,  does  not  now  exist:  Arble's  Estate,  161  Pa.  373. 

Under   Section   24  of   the   Orphans'   Court   Partition   Act   of   June   7, 


PARTITION  ACT— SECTIONS  24-25  29 

1917,  P.  L.  337,  which  authorizes  the  court,  if  for  any  reason  it  deems  it 
advisable,  to  appoint  some  suitable  person  trustee  for  the  purpose  of 
making  a  sale,  the  court  will  appoint  an  independent  trustee  for  such 
purpose  where  the  personal  interests  of  the  executors  are  in  conflict  with 
the  interests  of  the  petitioners  to  have  the  sale  made  promptly  and  bad 
feeling  exists  between  them. 

Semble.  The  court  may  also  make  such  appointment  where  the  execu- 
tors have  discharged  their  active  duties  and  are  functi  officii. 

"Under  the  will  of  Ann  Whitaker,  who  died  in  1890,  a  large  part  of 
her  real  estate  remaining  undivided,  this  partition  proceeding  was  brought 
and  has  been  so  far  pursued  that  it  is  now  ripe  for  the  appointment  of  a 
trustee  to  conduct  the  sale. 

"Parties  representing  about  one-third  interest  have  petitioned  for  the 
appointment  of  an  independent  trustee,  alleging  that  reasons  exist  render- 
ing it  advisable  to  appoint  some  suitable  person  other  than  the  surviving 
executors.  The  master,  in  a  careful  and  well-considered  report,  has 
found  that  these  reasons  exist. 

"It  might  well  be  argued  that  the  executors  are  functi  officii  (see 
Henson's  Estate,  12  Dist.  R.  326),  for  the  reasons  that  they  qualified  over 
thirty  years  ago,  their  active  duties  have  long  since  ceased  and  certain 
shares  of  the  real  estate  have  passed  by  the  wills  of  the  devisees  of  Ann 
Whitaker  to  their  devisees,  and,  in  turn,  by  the  wills  of  the  latter  to 
certain  of  the  present  parties. 

"Upon  reviewing  the  testimony  taken  before  the  master,  we  concur  in 
his  findings,  are  of  the  opinion  that  we  should  exercise  the  discretion 
permitted  by  the  act  and  appoint  some  disinterested  and  suitable  person  to 
execute  the  order  of  sale." 

Henderson,  J.,  in  Whitaker's  Est.  30  Dist.  814,  35  York  99. 

35.     BOND    OF    EXECUTOR,    ADMINISTRATOR    OR 
TRUSTEE  MAKING  SALE. 

SECTION  25.  In  all  cases  where  the  carrying  out  of  any  decree 
of  the  court  under  the  provisions  of  this  act  shall  involve  the 
receipt  of  money,  the  court  shall  direct  the  person  acting  under 
the  decree  to  file  a  bond  to  the  commonwealth  in  a  sufficient 
amount  conditioned  for  the  proper  application  of  all  moneys 
to  be  received.  Such  bond  shall  inure  to  the  benefit  of  all  per- 
sons interested  and  be  executed  by  two  individual  sureties  or  by 
one  corporate  surety,  approved  by  the  court.  No  such  decree 
shall  be  executed  until  such  bond,  with  sureties  as  may  be  re- 
quired, shall  be  filed:  Provided,  That  where  a  corporation,  duly 
authorized  by  law,  shall  be  designated  to  carry  out  any  such 
decree,  the  court  may,  in  lieu  of  security  as  aforesaid,  permit 
such  corporation  to  enter  its  own  bond  without  surety. 

NOTE. — This  is  a  copy  of  Section  16  (/)  cf  the  Fiduciaries  Act.  (See 
437  infra.)  See  the  note  to  that  section. 


30  PARTITION  ACT— SECTIONS  26-27-28 

36.  DISCHARGE  OF  LIENS  BY  SALE. 

SECTION  26.  All  public  or  private  sales  of  real  estate  or  of  any 
part  or  purpart  thereof,  under  the  provisions  of  this  act,  shall 
have  the  effect  of  judicial  sales  as  to  the  discharge  of  liens  upon 
the  real  estate  or  part  or  purpart  thereof  so  sold. 

NOTE. — This  supplies  Section  42  of  the  Act  of  February  24,  1834,  P.  L. 
81,  3  Purd.  3439,  which  extended  to  sales  in  partition  the  provision  of 
Section  21  of  the  Act  of  April  19,  1794,  3  Sm.  L.  143,  as  to  discharge  of 
real  estate  from  the  debts  of  the  decedent. 

37.  RECOGNIZANCE  BY  PURCHASER. 

SECTION  27.  In  all  cases  of  sales  of  real  estate  under  the  pro- 
visions of  this  act,  when  the  entire  purchase  money  shall  not  be 
paid  in  cash,  the  purchaser  or  purchasers  shall  enter  recognizance 
in  the  orphans'  court,  with  sufficient  security,  to  be  approved  by 
said  court,  for  the  payment  of  the  purchase  money,  or  any  bal- 
ance thereof,  over  and  above  the  costs  and  expenses  of  said  pro- 
ceedings, to  the  parties  who  may  be  entitled  to  the  same.  Such 
recognizance  shall  be  a  lien  on  the  real  estate  so  sold  until  fully 
paid  and  satisfied. 

NOTE. — This  is  founded  on  the  last  part  of  Section  i  and  Section  2  of 
the  Act  of  May  23,  1871,  P.  L.  274,  3  Purd.  3446,  substituting  "parties" 
for  "widow,  heirs  or  legatees." 

Section  2  of  the  Act  of  1871,  3  Purd.  3446,  provides  that  before  bring- 
ing suit  on  such  recognizance  the  person  entitled  to  receive  the  money 
shall  give  a  refunding  bond,  and  that  if  he  is  unable  to  do  so,  the  money 
shall  be  put  at  interest  as  directed  in  Section  41  of  the  Act  of  February 
24,  1834. 

As  is  noted  under  Section  47  (fr)  of  the  Fiduciaries  Act  (see  549  infra) 
Section  41  of  the  Act  of  1834,  as  to  refunding  bonds,  has  become  obsolete 
and  is  recommended  for  repeal.  Section  45  of  the  Act  of  1834,  relating 
to  the  giving  of  refunding  bonds  by  distributees  of  the  proceeds  of  real 
estate  sold  under  order  of  the  orphans'  court,  is  also  recommended  for 
repeal.  See  note  to  Section  16  (&)  of  the  Fiduciaries  Act  (see  447  infra). 

Section  2  of  the  Act  of  1871  is,  therefore,  also  recommended  for  repeal. 

38.  NO  OBLIGATION  TO  SEE  TO  APPLICATION  OF 

PURCHASE  MONEY. 

SECTION  28.  Whenever  a  public  or  private  sale  of  real  estate 
shall  be  directed  or  confirmed  under  the  provisions  of  this  act, 
the  person  or  persons  purchasing  the  real  estate  so  sold  and 
taking  title  thereto  in  pursuance  of  the  decree  of  the  court,  shall 
take  such  title  free  and  discharged  of  any  obligation  to  see  to 
the  application  of  the  purchase  money. 


PARTITION  ACT— SECTIONS  28-29  31 

NOTE. — This  is  copied  from  Section  16  (p)  of  the  Fiduciaries  Act 
(see  455  infra).  It  supersedes  Section  i  of  the  Act  of  March  27,  1865, 
P.  L.  45,  3  Purd.  3445,  and  Section  i  of  the  Act  of  April  28,  1868,  P.  L. 
105,  3  Purd.  3445,  relating  to  payment  into  court  of  the  purchase  money 
on  a  sale  in  partition,  the  former  extending  to  sales  in  partition  the 
provisions  of  Section  19  of  the  Act  of  February  24,  1834,  P.  L.  70,  i 
Purd.  rt22,  which  related  to  sales  by  executors  under  testamentary  powers, 
and  the  Act  of  1868  providing  that  the  court  might,  in  its  discretion, 
require  payment  into  court  or  make  such  order  as  might  be  just  in  the 
premises. 

As  is  noted  under  Section  30  of  the  Fiduciaries  Act  (see  496  infra), 
Section  19  of  the  Act  of  1834  was  superseded  by  the  Act  of  June  10, 
1911,  P.  L.  874,  7  Purd.  7703,  which  relieves  purchasers  of  obligation  to 
see  to  the  application  of  purchase  money,  and  is  trie  basis  of  Section  30 
of  the  Fiduciaries  Act. 


39.     WIDOW'S  INTEREST  TO  REMAIN  IN  HANDS  OF 
PURCHASER. 

SECTION  29.  Where  a  decree  for  the  sale  of  real  estate  shall  be 
made  by  the  orphans'  court,  in  the  event  provided  for  in  Section 
2I1  hereof,  the  court  shall  direct  that,  if  there  be  a  widow  entitled 
to  a  life  interest  in  such  real  estate  under  the  intestate  laws,  or 
should  such  widow  elect  to  take  against  the  will  and  thereby  be 
entitled  to  such  life  estate,  the  share  of  the  widow  in  the  pur- 
chase money  shall  remain  in  the  hands  of  the  purchaser,  during 
the  natural  life  of  the  widow.  The  interest  thereof  shall  be 
semi-annually  and  regularly  paid  to  her  by  the  purchaser,  his 
heirs  and  assigns,  holding  the  premises,  and  may  be  recovered 
by  distress  or  otherwise  as  rents  are  recoverable  in  this  com- 
monwealth, which  the  said  widow  shall  accept  in  full  satisfaction 
of  her  dower  in  such  premises ;  and  at  her  decease,  her  share  of 
the  purchase  money  shall  be  paid  to  the  persons  legally  entitled 
thereto. 

NOTE. — This  is  Section  43  of  the  Act  of  March  29,  1832,  P.  L.  203,  3 
Purd.  3440,  which  was  founded  on  Section  5  of  the  Act  of  April  14,  1828, 
P.  L.  484  (10  Sm.  L.  246). 

The  only  changes  now  made  are  to  insert  in  lines  3  and  4,  the  words 
"if  there  be  a  widow  entitled  to  a  life  interest  in  such  real  estate,"  instead 
of  the  words  "if  there  be  one,"  and  to  change  "annually"  to  "semi- 
annually." 

1(See  30  supra.") 


32  PARTITION  ACT— SECTIONS  29-30 

The  fact  that  the  Orphans'  Court  Partition  Act  of  1917  (P.  L.  338)  in 
Sections  15,  18  and  29  appears  to  concede  to  the  widow  a  lesser  estate 
in  lands  of  the  decedent  than  that  conferred  by  the  Intestate  Act  of  1917 
(P.  L.  431)  approved  the  same  day,  does  not  in  any  way  affect  the 
quantum  of  the  estate  taken  by  the  widow  under  the  latter  act.  If  there 
were  any  conflict  between  the  two  Acts,  the  Intestate  Act  must  govern  as 
to  the  interest  taken,  the  Partition  Act  having  to  do  merely  with  pro- 
cedure and  the  enforcement  of  rights  conferred  by  the  Intestate  Act 
But  the  alleged  conflict  is  only  apparent,  and  the  references  in  the 
Partition  Act  to  the  life  estate  of  the  widow  are  evidently  intended  to 
refer  to  estates  of  persons  dying  prior  to  the  Intestate  Act  of  1917. 

Dodd's  Est,  I  Wash.  236.  (See  extract  from  opinion  under  Sec.  21, 
supra.) 


40.    OTHER  UNDIVIDED  LIFE  INTERESTS  TO  RE- 
MAIN CHARGED  ON  REAL  ESTATE. 

SECTION  30.  In  the  case  of  a  sale  of  real  estate  under  pro- 
ceedings in  partition  in  the  orphans'  court,  should  any  person 
other  than  the  widow  of  the  decedent  be  entitled,  under  the  in- 
testate laws,  or  should  any  person,  including  the  widow  of  the 
decedent,  be  entitled  under  the  will  of  the  decedent  to  a  life 
interest  in  an  undivided  share  of  the  real  estate,  the  share  of 
such  person  shall  not  be  paid  to  him  or  her,  but  shall  remain 
charged  on  such  or  other  real  estate,  -according  to  the  directions 
of  the  court ;  and  the  legal  interest  thereof  shall  be  semi -annually 
and  regularly  paid  by  the  purchaser  of  such  real  estate,  his  heirs 
or  assigns,  holding  the  same,  during  the  natural  life  of  such  life 
tenant,  and  the  same  may  be  recovered  by  such  life  tenant  as  debts 
of  like  nature  in  this  commonwealth  are  recoverable,  and  on  the 
death  of  the  life  tenant,  the  said  principal  sum  shall  be  paid  by 
the  person  by  whom  the  said  real  estate  shall  have  been  pur- 
chased, his  heirs  or  assigns,  holding  the  premises,  to  the  per- 
sons thereunto  legally  entitled. 

NOTE. — This  includes  the  first  part  of  Section  46  of  the  Act  of  February 
24,  1834,  P.  L.  82,  3  Purd.  3445,  which  was  new  in  that  act.  It  is  now 
altered  to  conform  to  Section  19  of  this  draft  (see  28  supra).  The  re- 
mainder of  the  section  relates  to  sales  fo,r  the  payment  of  debts,  and  is 
covered  in  the  Fiduciaries  Act. 


PARTITION  ACT— SECTIONS  31-32  33 

41.  APPOINTMENT  OF  TRUSTEE  TO  HOLD  PRIN- 

CIPAL OF  SUM  IN  WHICH  THERE  IS  A  LIFE 
INTEREST. 

SECTION  31.  In  any  case  of  a  sale  of  real  estate  under  the 
provisions  of  this  act,  instead  of  the  life  interest  of  any  person 
in  an  undivided  share  of  the  real  estate  remaining  charged  on  the 
real  estate  as  aforesaid,  the  court  may,  on  petition  of  the  person 
entitled  to  the  life  interest,  or  of  the  purchaser,  direct  the  pur- 
chaser to  pay  such  principal  sum  to  a  suitable  person  or  corpora- 
tion, who  shall  be  appointed  by  the  court  as  trustee  to  receive  and 
hold  such  principal  sum,  invest  the  same  in  securities  authorized 
by  law,  pay  the  income  thereon,  after  deducting  all  legal  charges, 
to  the  person  entitled  thereto,  and,  upon  the  death  of  such  person, 
to  pay  over  such  principal  sum  to  the  persons  thereunto  legally 
entitled,  after  deducting  all  legal  charges  thereon.  Such  trustee 
shall  enter  such  security  as  the  court  may  direct,  and  shall  not 
be  an  insurer  of  the  trust  fund,  and  shall  be  liable  to  the  persons 
interested  in  the  income  or  corpus  of  the  trust  fund  only  for  such 
care,  prudence  and  diligence  in  the  execution  of  the  trust  as 
other  trustees  are  liable  for. 

NOTE. — This  is  a  new  section  intended  to  provide  a  method  of  relieving 
the  real  estate  of  the  charge  of  a  life  interest  in  an  undivided  share.  Its 
provisions  are  founded  to  some  extent  on  Section  23  of  the  Fiduciaries 
Act  (see  469  infra). 

42.  PROCEDURE    WHERE    EXECUTOR,    ADMINIS- 

TRATOR, OR  TRUSTEE  BECOMES  INCAPABLE, 
IS  REMOVED  OR  DIES. 

SECTION  32.  In  all  cases  where  the  letters  testamentary  or  of 
administration  shall  be  revoked,  or  the  executor,  administrator 
or  trustee,  or  one  or  more  of  the  co-executors,  co-administrators 
or  co-trustees,  authorized  to  make  a  sale  of  real  estate  under  the 
provisions  of  this  act,  shall  be  removed  by  the  court,  or  shall  die, 
or  become  insane,  or  otherwise  be  incapable,  before  such  sale  is 
effected  or  before  a  deed  of  conveyance  is  made  to  the  pur- 
chaser, such  sale  or  such  conveyance  shall  be  made  in  the  man- 
ner and  with  the  effects  as  provided  by  law  in  other  cases  of  sales 
by  executors,  administrators  or  trustees,  under  like  circumstances. 

NOTE. — This  is  a  new  section.  Repetition  of  the  provisions  of  Section 
16  (;')  (see  441-6  infra)  of  the  Fiduciaries  Act  seems  unnecessary. 

Section  47  of  the  Act  of  1832,  3  Purd.  3441,  providing  for  execution 
of  the  deed  where  an  executor,  administrator  or  guardian  who  has  made 
3 


34  PARTITION  ACT— SECTIONS  32-33 

a  sale  becomes  incapable,  is  removed  or  dies,  applies  to  all  sales  under 
order  of  the  orphans'  court.  It  and  the  related  acts  are  covered  by 
Section  16  (/)  (see  441-6  infra)  of  the  Fiduciaries  Act. 

Section  4  of  the  Act  of  April  9,  1849,  P.  L.  525,  3  Purd.  3441,  makes 
similar  provisions  where  a  trustee  appointed  by  the  court  to  make  a  sale 
in  partition  is  removed,  dies  or  becomes  incapable  before  making  con- 
veyance. 

43.    APPOINTMENT   OF  AUDITOR   TO   ASCERTAIN 
LIENS  OR  INCUMBRANCES. 

SECTION  33.  In  all  cases  where,  in  consequence  of  proceedings 
in  partition,  the  share,  or  any  part  thereof,  of  a  party  in  interest, 
in  real  estate,  shall  be  converted  into  money,  either  by  reason  of 
the  impracticability  or  inequality  of  partition,  or  by  virtue  of  a 
sale  or  otherwise,  the  orphans'  court,  before  making  a  final 
decree  confirming  the  partition  or  distributing  the  proceeds  of 
sale,  as  the  case  may  be,  may  appoint  a  suitable  person  as  auditor, 
to  ascertain  whether  there  are  any  liens  or  other  incumbrances  on 
such  real  estate,  affecting  the  interests  of  the  parties.  If  it  shall 
appear  by  the  report  of  such  auditor  or  otherwise,  that  there 
are  such  liens,  the  court  may  order  the  amount  of  money  which 
may  be  payable  to  any  of  the  parties  against  whom  liens  exist, 
to  be  paid  into  court,  and  shall  have  full  power  to  decree  the 
distribution  thereof  among  the  creditors  or  others  entitled  thereto. 
Where  recognizance  or  other  security  shall  be  given  for  the  pay- 
ment of  money,  the  court  may  make  an  order  on  the  party  giving 
such  recognizance  or  other  security,  to  pay  the  amount  thereof 
into  court,  when  the  same  shall  become  due,  to  be  distributed  in 
like  manner  among  the  persons  holding  liens  at  the  time  of  the 
partition. 

NOTE. — This  is  Section  49  of  the  Act  of  1832,  3  Purd.  3442,  which  was 
new  in  that  act. 

The  changes  now  made  are  to  substitute  "a  party  in  interest"  for  "an 
heir"  in  line  3;  the  words  from  "distributing"  to  "may  be,"  for  "sale 
as  aforesaid"  in  line  7;  "full  power  to  decree"  for  "the  like  power  as  to" 
in  line  15;  and  "entitled  thereto"  for  "as  is  now  exercised  by  the  courts 
of  common  law,  where  money  is  paid  into  court  by  sheriffs  or  coroners," 
in  line  17. 

Section  45  of  the  Act  of  February  24,  1834,  P-  L.  82,  i  Purd.  1122,  re- 
lating to  the  giving  of  refunding  bonds  by  distributees  of  the  proceeds 
of  real  estate,  applies  to  all  sales  under  order  of  the  orphans'  court, 
including  partition.  In  a  note  to  Section  16  (&)  of  the  Fiduciaries  Act 
(see  447  infra)  the  above  section  is  recommended  for  repeal.  There 
seems  to  be  no  reason  for  re-enacting  it  as  to  partition  sales  only. 


PARTITION  ACT— SECTIONS  33-34-35  (o)  35 

Section  48  of  the  Act  of  1832,  3  Purd.  3444,  and  Section  i  of  the  Act 
of  April  13,  1869,  P.  L.  28,  3  Purd.  3446,  relating  to  payment  to  a  husband 
of  money  awarded  to  his  wife  in  partition  proceedings,  would  seem  to  be 
obsolete  since  the  Married  Women's  Acts  and  the  act  abolishing  separate 
acknowledgments.  Their  repeal  is  therefore  recommended. 

44.  ACCOUNT  OF  EXECUTOR,  ADMINISTRATOR,  OR 

TRUSTEE. 

SECTION  34.  Upon  the  sale  of  any  real  estate  by  an  executor, 
administrator  or  trustee,  in  proceedings  in  partition  in  the  or- 
phans' court,  it  shall  be  the  duty  of  the  said  executor,  adminis- 
trator or  trustee  to  file  in  the  orphans'  court  of  the  proper 
county  an  account  of  the  proceeds  of  such  sale. 

NOTE. — This  is  Section  i  of  the  Act  of  April  u,  1863,  P.  L.  341,  3  Purd. 
3445,  altered  by  inserting  "executor"  in  lines  2  and  4,  by  changing  "after" 
to  "in"  in  line  2,  by  substituting  "orphans'  court"  for  "office  of  the 
register,"  and  by  substituting  "the  proceeds  of  such  sale"  for  "his  said 
administration  or  trusteeship,"  and  omitting,  at  the  end,  "in  the  same 
manner  as  is  required  by  law  in  the  settlement  of  estates  of  decedents." 

45.  COSTS  AND  COUNSEL  FEES— IN  GENERAL. 

SECTION  35.  (a)  The  costs  in  all  cases  of  partition  in  the  or- 
phans' court,  with  a  reasonable  allowance  to  the  petitioners  for 
counsel  fees,  to  be  taxed  by  the  court,  or  under  its  direction, 
shall  be  paid  by  all  the  parties,  in  proportion  to  their  several 
interests. 

NOTE. — This  is  Section  I  of  the  Act  of  April  27,  1864,  P.  L.  641,  3  Purd. 
3455,  so  far  as  it  relates  ot  the  orphans'  court.  The  act  is  not  to  be  re- 
pealed so  far  as  it  relates  to  the  common  pleas. 

Section  36  of  the  Act  of  March  29,  1832,  3  Purd.  3423,  provides  that 
the  orphans'  court  shall  have  power  "to  give  judgment  *  *  *  *  that 
the  costs  thereof  be  paid  by  the  parties  concerned."  This  seems  to  have 
been  supplied  by  the  Act  of  1864,  and  is  now  recommended  for  repeal. 

Counsel  fees  in  partition  cases  must  be  based  on  compensation  for  the 
usual  and  accustomed  service  in  each  case.  In  case  of  a  contest  between 
the  heirs,  compensation  for  such  services  must  be  paid  by  individual  heirs, 
and  cannot  be  taxed  against  all  of  them. 

"The  Partition  Act  of  1917  is,  with  slight  verbal  changes  an  exact 

reproduction  of  the  Act  of  1864 There  is  no  room  for  doubt  as 

to  what  the  Legislature  intended  by  this  enactment.  While  in  the  ordinary 
course  of  practice,  a  partition  was  for  the  benefit  of  all  the  owners  of  the 
property  divided,  before  the  act  the  entire  burden  of  the  compensation 
of  counsel  for  conducting  the  formal  proceeding  was  thrown  upon  the 

petitioners  in  the  orphans'  court.  In  every  case  professional  aid 

was  indispensable,  and  the  purpose  of  the  statute  was  to  divide  the  cost 


36  PARTITION  ACT— SECTIONS  35  (a),  (6)-36  (a),  .(&) 

of  the  employment  of  that  aid  amongst  the  parties  equally  benefited  by 
the  result  of  the  proceedings.  But  it  was  indispensable  aid  only  that  was 
contemplated — such  usual  and  accustomed  service  as  the  exigencies  of 
each  case  should  render  necessary.  The  compensation  of  counsel  for 
services  in  the  trial  of  contested  causes  was  not  the  end  in  view." 
Quoting  from  Grubb's  Appeal,  82  Pa.  23.  Per  Stewart,  P.  J.,  in  Klase's 
Est.  18  North  46. 

46.  IN  CASES  OF  SALES. 

(fc)  In  all  cases  of  sales  of  real  estate,  under  the  provisions 
of  this  act,  it  shall  be  lawful  for  the  court  to  order  and  decree 
that  the  costs  and  expenses  of  said  proceedings,  including  a 
reasonable  compensation  to  the  executor,  administrator  or  trustee 
by  whom  said  sale  shall  be  made,  shall  be  paid,  on  the  confirma- 
tion of  such  sale,  out  of  the  proceeds  thereof. 

NOTE. — This  is  the  first  part  of  Section  I  of  the  Act  of  May  23,  1871, 
P.  L.  274,  3  Purd.  3446,  with  slight  changes  in  phraseology,  and  the  sub- 
stitution of  "out  of  the  proceeds  thereof"  for  "by  the  court,"  at  the  end. 
In  line  2,  the  words,  "and  may"  are  omitted  after  "shall." 

47.  PRIVATE  SALES,— WHEN   ORDERED. 

SECTION  36.  (a)  When  any  orphans'  court  having  jurisdiction 
of  any  proceedings  in  the  partition  of  real  estate  shall  order,  or 
has  ordered,  any  such  real  estate  or  any  purparts  thereof  to  be 
sold,  said  court  may  authorize  or  direct  a  private  sale  thereof, 
or  may  approve,  ratify  and  confirm  a  private  sale  thereof  made 
under  an  order  for  a  public  sale,  if  in  the  opinion  of  the  court, 
under  all  the  circumstances,  a  better  price  can  be  obtained  at  a 
private  sale  than  at  a  public  sale  thereof. 

NOTE. — This  is  Section  i  of  the  Act  of  May  22,  1895,  P.  L.  114,  3  Purd. 
3454,  limited  to  the  orphans'  court.  So  far  as  it  relates  to  the  common 
pleas,  the  repeal  of  that  section  is  not  recommended. 

In  lines  4  and  5,  "authorize  or  direct"  is  substituted  for  "decree  and 
approve."  The  provision  for  security  is  omitted,  being  covered  by  Section 
25  of  this  draft  (see  35  supra). 

48.  NOTICE  OF  SALE. 

(b)  Before  authorizing  or  directing  any  private  sale  of  real 
estate  under  this  act,  public  notice  thereof  shall  be  given  by  ad- 
vertisement printed  in  at  least  one  newspaper,  published  in  the 
county  where  such  real  estate  is  situated,  and  in  such  other 


PARTITION  ACT— SECTIONS  36  (&),  (c)-37  37 

papers  as  may  be  designated  by  the  court,  once  a  week  for  a 
period  of  three  weeks  prior  to  the  date  fixed  by  such  order  for 
authorizing  or  confirming  such  sale,  and  also  written  or  printed 
notices,  one  of  which  shall  be  posted  at  a  conspicuous  place  on 
the  real  estate  proposed  to  be  sold,  and  at  least  three  of  which 
shall  be  posted  at  three  of  the  most  public  places  in  the  vicinity 
of  such  real  estate.  Before  authorizing  or  directing  such  sale, 
the  court  shall  require  proof,  by  affidavit  to  be  filed  in  the  pro- 
ceeding, that  notice  as  aforesaid  has  been  given.  Such  notice 
shall  specify  the  location  and  description  of  the  real  estate  pro- 
posed to  be  sold,  the  name  of  the  proposed  purchaser  and  the 
price  agreed  to  be  paid. 

NOTE. — This  is  copied  from  Section  16  (m)  2  of  the  Fiduciaries  Act 
(see  451  infra). 

49.  SETTING  ASIDE  SALE. 

(c)  On  the  day  fixed  by  such  order  and  notice  for  authorizing 
or  directing  such  private  sale,  any  party  interested  as  heir,  devisee 
or  intending  purchaser,  or  any  legatee  whose  legacy  is,  by  the 
express  terms  of  the  will,  or  by  law,  charged  on  such  real  estate, 
may  appear  and  object  to  such  private  sale  on  account  of  the 
insufficiency  of  the  price,  and,  if  such  objection  be  sustained,  may 
offer  to  give  or  pay  a  substantial  increase  for  such  property.  The 
court,  at  its  discretion,  may  thereupon  authorize  or  direct  such 
sale,  or  refuse  to  authorize  or  direct  the  same,  and  accept  any 
substantially  increased  offer,  and  may  authorize  the  sale  of  such 
property  to  such  new  bidder  upon  compliance  with  the  conditions 
of  sale  and  giving  such  security  as  shall  be  directed  by  the  court. 
Such  party  interested  or  legatee  may  appear  as  aforesaid  and 
object  to  such  sale  on  any  legal  or  equitable  grounds.  Nothing 
herein  contained  shall  be  construed  to  affect  the  existing  law  with 
respect  to  objections  to  public  sales. 

NOTE. — This  is  copied,  with  slight  modification,  from  Section  16  (w) 
3  of  the  Fiduciaries  Act  (see  452  infra). 

50.  LANDS  IN  ADJOINING  TRACTS  IN  DIFFERENT 

COUNTIES. 

SECTION  37.  When  the  lands,  in  respect  to  which  application 
for  partition  shall  be  made  to  the  orphans'  court  as  aforesaid, 
lie  in  one  or  more  adjoining  tracts,  in  different  counties,  it  shall 
be  lawful  for  the  orphans'  court  of  the  county  in  which  the 


38  PARTITION  ACT— SECTIONS  37-38  (a) 

mansion  house  is  situated,  or,  if  there  be  no  mansion  house,  the 
court  of  the  county  where  the  principal  improvements  may  be, 
or,  if  there  be  no  improvements,  the  court  of  either  county,  on 
the  application  of  any  person  interested,  either  to  proceed  by  the 
appointment  of  commissioners  as  aforesaid,  or  to  issue  its  writ 
to  the  sheriff  of  the  county  within  the  jurisdiction  of  the  court, 
specifying  the  lands  of  which  a  partition  or  valuation  is  to  be 
made.  Thereupon  the  said  sheriff  shall  summon  an  inquest  to 
divide  or  value  the  said  lands,  in  the  same  manner  as  if  the  whole 
were  within  his  proper  bailiwick.  Upon  the  return  thereof,  or 
upon  the  return  of  the  commissioners  appointed  by  the  court,  as 
aforesaid,  the  court  may  further  proceed  therein,  in  all  respects 
as  if  all  the  said  lands  were  in  the  county.  Any  recognizance 
taken  in  pursuance  of  such  proceedings  shall  be  as  effectual,  to 
all  intents  and  purposes,  as  if  the  lands  bound  by  it  were  wholly 
within  the  county  where  such  recognizance  is  taken.  A  certified 
copy  of  the  proceedings  which  may  be  had  shall,  within  twenty 
days  after  the  final  decree  therein,  be  delivered  to  the  clerk  of  the 
orphans'  court  of  each  county  in  which  the  application  shall  not 
have  been  made,  and  in  which  any  part  of  the  said  lands  are 
situate,  which  shall  be  entered  on  the  records  of  such  court 
at  the  joint  expense  of  all  parties  concerned. 

NOTE. — This  is  Section  44  of  the  Act  of  March  29,  1832,  3  Purd.  3447, 
which  was  founded  on  Section  i  of  the  Act  of  April  i,  1805,  P.  L.  205. 
4  Sm.  L.  246.  It  is  now  altered  by  inserting  the  provisions  as  to  the  man- 
sion house,  improvements,  etc.,  as  used  in  the  Fiduciaries  Act  In  the 
proviso,  "certified  copy"  is  substituted  for  "exemplification." 

51.  LANDS  IN  DIFFERENT  COUNTIES,  BUT  NOT  IN 
ADJOINING  TRACTS,— WHERE  PROCEEDINGS 
SHALL  BE  BROUGHT. 

SECTION  38.  (a)  All  proceedings  for  the  partition  or  valuation 
of  real  estate,  under  the  provisions  of  this  act,  where  the  real 
estate  to  be  divided  or  valued  is  situate  in  two  or  more  counties 
of  this  commonwealth,  but  not  in  adjoining  tracts,  shall  be  brought 
only  in  the  county  where  the  decedent,  whose  land  is  to  be  divided 
or  valued,  had  his  domicile,  or  if  he  had  no  domicile  in  the  state, 
then  in  the  county  where  the  larger  part  of  the  estate  in  value 
shall  be  situated;  or,  with  leave  of  such  court,  the  parties  inter- 
ested may  institute  proceedings  in  the  orphans'  court  in  each 
county  where  such  real  estate  is  situated. 


PARTITION  ACT— SECTIONS  38  (a),  (&),  (c)  39 

NOTE. — This  is  founded  on  Section  i  of  the  Act  of  February  20,  1854, 
P.  L.  89,  3  Purd.  3447,  so  far  as  the  same  relates  to  the  orphans'  court, 
and  Section  I  of  the  Act  of  April  17,  1856,  P.  L.  386,  3  Purd.  3448,  con- 
struing the  former. 

The  Act  of  1854  includes  the  common  pleas  and  is  not  to  be  repealed 
in  that  regard. 

After  "real  estate"  in  line  2,  the  words  "the  recovery  of  dower  or  the 
widow's  third  or  other  part"  have  been  omitted  as  unnecessary,  the 
widow's  remedy  in  the  orphans'  court  being  now  by  partition  proceedings. 
The  word  "recovered"  is  omitted  after  "valued"  in  two  places,  for  the 
same  reason.  The  words  "if  he  had  no  domicile  in  this  state,  then"  have 
been  substituted  for  "the  homestead";  and  after  "shall  be  situated"  the 
words  "or  any  defendant  may  be  found"  are  omitted.  The  last  clause 
is  substituted  for  the  provisions  of  the  Act  of  1856,  which  are  unneces- 
sarily obscure  but  which  mean  the  same  as  the  substituted  clause. 

Section  2  of  the  Act  of  May  14,  1874,  P-  L.  156,  3  Purd.  3449,  supple- 
mental to  the  Act  of  1854,  provides  that  "Nothing  contained  in  this  act 
or  the  acts  to  which  it  is  a  supplement,  shall  be  so  construed  as  to  prevent 
any  tenant  in  common  or  joint-tenant  of  real  estate,  situated  in  two  or 
more  counties  of  this  commonwealth,  from  bringing  a  separate  suit,  either 
at  law  or  in  equity,  in  either  or  any  of  such  counties,  for  partition  or 
valuation  of  so  much  of  such  real  estate  as  is  situated  therein,  except  in 
the  case  where  such  real  estate  consists  of  single  tracts  lying  in  adjoining 
counties."  This  is  recommended  for  repeal,  so  far  as  it  relates  to  the 
orphans'  court. 

52.  SERVICES  OF  PROCESS  AND  NOTICES. 

(&)  In  proceedings  under  this  section,  all  process,  writs  and 
notices  required  to  be  served  personally  upon  any  person  or 
persons  interested  in  such  proceedings  may  be  served  by  the 
sheriff  of  any  county  of  this  state  under  deputization  from  the 
sheriff  of  the  county  in  which  such  proceedings  have  been  insti- 
tuted or  commenced. 

NOTE. — This  is  taken  from  Section  i  of  the  Act  of  April  17,  1856,  P.  L. 
386,  3  Purd.  3448,  with  the  addition  of  the  provision  for  service  in  any 
county  of  the  commonwealth. 

Section  i  of  the  Act  of  February  20,  1854,  P.  L.  89,  3  Purd.  3447,  pro- 
vides that  "service  of  process  may  be  made  by  any  sheriff,  where  real 
estate  to  be  divided  shall  be  situated,  or  any  defendant  may  be  found." 

53.  SELECTION  OF  COMMISSIONERS  OR  JURORS; 

COMPENSATION  AND  MILEAGE. 

(c)  The  commissioners  or  jurors  for  making  partition  or  valu- 
ation under  the  provisions  of  this  section  may  be  selected  from 
the  county  in  which  such  proceedings  are  instituted,  or  from 


40  PARTITION  ACT— SECTION  38  (c),  (d),  (*),  (/) 

any  one  or  more  of  the  counties  in  which  such  land  is  situate. 
The  compensation  and  mileage  of  said  commissioners  or  jurors 
shall  be  the  same  as  is  provided  in  Section  7*  of  this  act. 

NOTE. — This  is  derived  from  Sections  i  and  2  of  the  Act  of  April  17, 
1856,  P.  L.  386,  3  Purd.  3448.  That  act  specially  provides  for  the  sheriff's 
fees  and  the  jurors'  fees  and  mileage.  Commissioners  are  now  included, 
provision  is  made  that  the  commissioners  or  jurors  may  be  selected  from 
any  one  or  more  of  the  counties  instead  of  only  from  the  county  where 
the  proceedings  are  instituted,  and  reference  is  made  to  Section  7  of  this 
draft  for  the  provisions  as  to  their  compensation  and  mileage.  The  pro- 
vision that  the  sheriff  shall  receive  two  dollars  a  day  for  each  day  after 
the  first,  is  omitted,  since  it  is  properly  covered  by  the  sheriff's  fee  bills. 

1(See  9  supra.) 

54.  SALES. 

(d)  This  section  shall  include  all  proceedings  in  partition  neces- 
sary to  be  had,  as  well  before  as  after  the  refusal  of  the  parties 
to  take  real  estate  at  the  valuation ;  and  the  said  courts  in  which 
such  proceedings  are  had,  are  hereby  authorized  to  order  the 
sale  of  such  real  estate,  after  such  refusal,  in  the  same  manner 
as  if  all  the  real  estate  were  situated  in  the  county  in  which  such 
proceedings  are  instituted :  Provided,  That  the  sales  of  such  real 
estate  shall  be  held  in  the  county  in  which  the  real  estate  is  situ- 
ated, unless  otherwise  ordered  by  the  said  courts. 

NOTE.— This  is  part  of  Section  i  of  the  Act  of  March  30,  1869,  P.  L. 
15,  3  Purd.  3448,  supplemental  to  the  Act  of  1854. 

55.  PROCEEDINGS     NOT     SPECIALLY     PROVIDED 

FOR  IN  THIS  SECTION. 

(e)  Except  as  otherwise  provided  by  this  section,  the  pro- 
ceedings hereunder  shall  be  the  same  as  provided  by  this  act  in 
other  cases  of  partition  and  valuation. 

NOTE. — This  is  taken  from  the  last  clause  of  Section  I  of  the  Act  of 
May  14,  1874,  P-  L.  156,  3  Purd.  3449. 

56.  FILING     CERTIFIED     COPIES     IN     OTHER 

COUNTIES. 

(/)  Certified  copies  of  the  record  may  be  filed  in  every  county 
where  such  real  estate  shall  be  situated,  in  the  office  of  the  clerk 
of  the  orphans'  court  thereof,  and  be  received  in  evidence,  with 
the  like  effect,  as  the  records  of  the  court  where  filed. 


PARTITION  ACT— SECTIONS  38  (/)-39  («),  (&)  i  41 

NOTE. — This  is  taken  from  the  last  part  of  Section  i  of  the  Act  of  Feb- 
ruary 20,  1854,  P.  L.  89,  3  Purd.  3447,  substituting  "certified  copies"  for 
"exemplifications." 

57.  RECOGNIZANCES    IN    GENERAL,— ASCERTAIN- 

MENT OF  AMOUNTS  DUE. 

SECTION  39.  (a)  In  all  cases  of  partition  in  the  orphan's  court, 
where  the  court  shall  order  and  decree  any  party  taking  any  por- 
tion of  the  estate  at  a  bid  or  at  the  appraisement,  or  purchasing 
the  same  at  a  sale,  as  hereinbefore  provided,  to  give  any  recog- 
nizance for  the  payment  of  any  part  of  bid,  valuation  or  pur- 
chase price,  the  court  shall  have  power  to  appoint  an  auditor 
for  the  purpose  of  ascertaining  advancements  and  making  dis- 
tribution among  the  heirs  and  parties  in  interest.  In  all  cases 
in  which  such  auditor  has  not  been  or  may  not  be  appointed,  it 
shall  be  the  duty  of  the  court  to  make  a  calculation  exhibiting  the 
amounts  due  the  respective  parties  in  interest,  and  to  direct  the 
clerk  of  the  court  to  record  said  calculation  upon  the  partition 
docket  of  the  court  as  a  part  of  the  proceedings  in  each  case,  for 
which  services  the  clerk  shall  be  entitled  to  a  fee  of  one  dollar. 

NOTE. — This  is  Section  i  of  the  Act  of  April  12,  1855,  P.  L.  214,  3  Purd. 
3436,  modified  so  as  to  authorize  the  court  to  appoint  an  auditor,  and  to 
provide  that  the  court,  instead  of  the  clerk,  shall  make  the  calculation  and 
that  it  shall  be  recorded  in  the  partition  docket. 

58.  SATISFACTION,— OF  RECORD. 

(&)  i.  Where  a  recognizance  has  been  or  shall  hereafter  be 
taken  in  any  orphans'  court,  in  any  partition  proceeding,  as 
hereinbefore  provided  for,  and  the  same,  or  any  part  thereof, 
shall  be  satisfied  or  paid  to  the  person  or  persons  interested 
therein,  his,  her  or  their  agent  or  attorneys,  any  such  person  so 
having  received  satisfaction  of  the  amount  coming  to  him,  shall 
enter  an  acknowledgment  thereof  upon  the  record  of  such  court, 
which  shall  be  satisfaction  and  discharge  of  the  said  recognizance, 
to  the  amount  acknowledged  to  be  paid;  and  the  recognizance 
shall  cease  to  be  a  lien  on  the  real  estate  of  the  conusor  to  a 
greater  amount  than  the  principal  and  interest  actually  remaining 
due. 

NOTE. — This  is  Section  50  of  the  Act  of  March  29,  1832,  3  Purd.  3435, 
which  was  derived  from  the  first  clause  of  Section  6  of  the  Act  of  April 
14,  1828,  P.  L.  484,  10  Sm.  L.  246,  but  omitted  all  reference  to  bonds  as 


42  PARTITION  ACT— SECTIONS  39  (&)  i,  2-40 

distinguished  from  recognizances.  It  is  now  made  applicable  to  all  cases 
of  recognizance  in  partition,  and  not  merely  to  cases  of  acceptance  at  the 
appraisement 

59.  REMEDY  FOR  REFUSING  TO  SATISFY. 

2.  If  any  person  who  shall  have  received  satisfaction  as  afore- 
said, for  his  claim  or  lien  secured  by  such  recognizance,  shall 
neglect  or  refuse  to  enter  upon  the  record  his  acknowledgment 
thereof,  upon  the  written  request  of  the  owner  of  the  premises, 
bound  by  such  recognizance,  or  of  any  part  thereof,  or  of  his 
legal  representatives,  or  other  persons  interested  therein,  on 
tender  of  all  the  costs  for  entering  such  acknowledgment,  the 
orphans'  court,  on  due  proof  to  them  made  that  the  entire 
amount  due  to  any  heir,  legatee  or  distributee,  shall  have  been 
fully  paid  and  discharged,  may  make  an  order  for  the  relief 
of  such  person  from  any  recognizance  or  other  recorded  lien. 
Such  order,  being  certified  to  the  proper  court  where  such  lien 
may  appear,  shall  be  entered  on  the  records,  and  shall  inure  and 
be  received  as  a  full  satisfaction  and  discharge  of  the  same. 

NOTE. — This  is  Section  51  of  the  Act  of  March  29,  1832,  3  Purd.  3436, 
which  was  founded  on  part  of  Section  6  of  the  Act  of  April  14,  1828, 
P.  L.  484,  10  Sm.  L.  246.  The  Commissioners'  Draft  did  not  contain  the 
provision  as  to  action  by  the  orphans'  court. 

The  provision  for  a  penalty  of  fifty  dollars  and  damages  to  be  assessed 
by  a  jury  on  a  trial  at  law  is  now  omitted,  the  remedy  in  the  orphans' 
court  being  considered  sufficient. 

Sections  22  and  23  of  the  Act  of  April  26,  1850,  P.  L.  581,  3  Purd.  3436, 
so  far  as  they  relate  to  such  recognizances,  are  recommended  for  repeal. 
Those  sections  extend  to  legacies  and  recognizances  the  provisions  of  the 
Act  of  March  31,  1823,  P.  L.  216,  8  Sm.  L.  131,  I  Purd.  1187,  relating  to 
satisfaction  of  mortgages.  The  incorporation  of  those  provisions  in  the 
present  draft,  by  mere  reference  would  raise  a  question  of  constitution- 
ality and  there  seems  to  be  no  need  for  doing  so. 

60.  PROTECTION  OF  INTERESTS  OF  PERSONS  NOT 

IN  ESSE. 

SECTION  40.  In  all  cases  arising  under  this  act,  where  there  is 
a  limitation  of  an  estate  or  interest  in  the  premises  or  some  part 
thereof  to  a  person  or  persons  not  in  existence,  the  court  shall 
have  power  to  appoint  a  trustee  to  represent  such  unborn  person 
or  persons  in  the  proceedings,  and  shall  have  power  to  make  such 
further  or  other  orders  in  regard  to  the  property  or  purpart  in 
which  such  person  or  persons  may  become  interested,  or  the 


PARTITION  ACT— SECTIONS  40-41  43 

proceeds  of  the  sale  thereof,  or  any  recognizance  given  with 
respect  thereto,  as  justice  and  equity  may  require. 

NOTE. — This  is  founded  on  the  second  proviso  to  Section  i  of  the  Act 
of  June  3,  1840,  P.  L.  593,  3  Purd.  3412,  which  relates  only  to  "writs  of 
partition,"  as  construed  in  Holmes  v.  Woods,  168  Pa.  530. 

Although  under  the  terms  of  the  will  creating  the  trust,  there  is  to  be 
no  distribution  until  after  the  death  of  the  wife  and  testator's  last  sur- 
viving brother  or  sister,  at  which  time  the  class  of  distributees  is  to  be 
determined,  which  is  likely  to  include  children  not  yet  born,  there  is  no 
necessity  for  the  appointment  of  a  trustee  for  such  unborn  children, 
as  the  trustee  appointed  by  the  will  has  full  custody  and  control,  as  an 
active  trustee,  of  both  corpus  and  income  of  said  estate,  and  is  responsible 
for  a  proper  distribution  when  the  time  arrives.  The  trustee  has  power 
and  authority  to  represent  all  cestuis  que  trustent,  whether  in  esse  or  not, 
in  any  litigation  affecting  the  trust. 

"The  third  matter  of  law  brought  up  by  the  answer,  raises  the  question 
of  law  whether  or  not  the  interests  of  the  unborn  persons,  if  any,  in  the 
decedent's  real  estate  involved  in  this  cause  are,  by  said  will,  effectively 
reposed  in  the  respondent  as  such  trustee  thereby  appointed,  who  would 
thus  be  lawfully  authorized  and  in  duty  bound,  to  represent  such  interests 
in  this  proceeding  or  whether  such  interests  of  unborn  persons,  if  any, 
should  be  represented  and  protected  in  this  cause  by  a  trustee  to  be 
appointed  by  this  court  for  that  special  purpose  under  Section  40  of  the 
Orphans'  Court  Partition  Act  of  1917,  P.  L.  337. 

"We  are  of  the  opinion  that  no  such  special  trustee  need  here  be  ap- 
pointed for  the  purpose  of  representing  and  protecting  such  interests  of 
persons  not  in  esse,  if  any,  believing  that  such  interests,  if  any,  have 
been  by  the  testator  himself  duly  committed  to  and  effectually  reposed  in 
the  respondent  as  trustee,  who  is  thus  duly  clothed  with  absolute  power 
and  authority  to  represent  such  unborn  persons,  if  any,  and  their  rights 
and  interests  to,  in  and  concerning  the  said  real  estate  in  this  cause." 

Dodd's  Estate,  i  Wash.  236. 

61.     PARTITION  DOCKET. 

SECTION  41.  It  shall  be  the  duty  of  the  clerks  of  the  orphans' 
courts  of  the  several  counties  of  this  commonwealth,  and  they 
are  hereby  required  to  enter  in  a  book  to  be  procured  for  that 
purpose,  to  be  called  a  partition  docket,  all  the  proceedings  in 
partition  in  every  case  in  their  respective  courts,  from  the  com- 
mencement to  the  final  judgment  and  decree  thereon,  which  shall 
be  and  the  same  is  hereby  made  the  record  of  said  court;  for 
which  service,  such  clerks  shall  be  entitled  to  receive  the  same 
fees  as  the  recorders  of  deeds  receive  for  recording,  to  be  taxed 
and  paid  as  part  of  the  costs  of  such  proceedings. 


44  PARTITION  ACT— SUCTIONS  41-42-43-44 

NOTE.— This  is  Section  i  of  the  Act  of  April  4,  1889,  P.  L.  23,  3  Purd. 

^T1*}^" 

62.  PARTITION  INDEX. 

SECTION  42.  It  shall  be  the  duty  of  the  clerks  of  the  orphans' 
courts  of  the  several  counties  of  this  commonwealth,  and  they 
are  hereby  required,  t<3  keep  a  separate  index,  to  be  known  as 
the  partition  index,  in  which  shall  be  entered  in  alphabetical 
order  the  names  of  all  persons  to  whom  any  real  estate  shall  be 
allotted  or  awarded  in  partition  proceedings  in  said  courts,  and 
the  names  of  all  purchasers  of  real  estate  in  such  proceedings. 

NOTE. — This  is  a  new  section,  introduced  in  order  to  facilitate  searches 
of  title.  In  the  absence  of  such  index,  it  is  often  very  difficult  to  trace 
back  a  title  to  a  partition  proceeding,  since  the  records  of  the  orphans' 
court  show  the  proceeding  only  under  the  name  of  the  decedent. 

63.  APPEALS. 

SECTION  43.  Any  party  aggrieved  by  any  definitive  decree  or 
judgment  of  any  orphans'  court,  or  by  any  order  or  decree 
awarding  or  refusing  to  award  an  inquest,  or  by  an  order  of 
sale,  under  the  provisions  of  this  act,  may  appeal  therefrom  to 
the  proper  appellate  court  as  in  other  cases  of  appeals  from  the 
orphans'  court. 

NOTE. — This  is  a  new  section,  intended  to  permit  an  appeal  from  an 
order  awarding  an  inquest,  which  has  been  held  to  be  an  interlocutory  order 
from  which  an  appeal  does  not  lie :  Wistar's  Appeal,  1 15  Pa.  241 ;  Gesell's 
Appeal,  84  Pa.  238;  Christy's  Appeal,  no  Pa.  538,  and  from  an  order 
of  sale  in  partition,  which  has  also  been  held  to  be  interlocutory;  see 
Robinson's  Appeal,  62  Pa.  213;  Robinson  v.  Clancy,  69  Pa.  89;  Snod- 
grass'  Appeal,  96  Pa.  420. 

Where  questions  of  the  right  of  partition,  involving,  for  example, 
adverse  claims  of  title,  or  the  construction  of  a  will,  are  determined  in 
awarding  the  inquest  it  seems  that  it  should  be  possible  to  have  this 
decision  reviewed  without  waiting  until  after  the  allotment  of  purparts 
or  confirmation  of  a  sale. 

Section  15  of  the  Act  of  April  5,  1842,  P.  L.  236,  2  Purd.  1434,  permits 
a  writ  of  error  to  a  judgment  quod  partitio  fiat  in  actions  of  partition 
at  law.  There  seems  to  be  no  reason  why  a  similar  allowance  should  not 
be  made  in  partition  in  the  orphans'  court. 

64.  SHORT  TITLE  SECTION. 

SECTION  44.  This  act  shall  be  known  and  may  be  cited  as  the 
Orphans'  Court  Partition  Act  of  1917. 


PARTITION  ACT— SECTION  45  45 

65.     REPEALER. 

SECTION  45.  The  following  acts  and  parts  of  acts  of  assembly 
are  repealed  as  respectively  indicated.  The  repeal  of  the  first 
section  of  an  act  shall  not  repeal  the  enacting  clause. 

Section  22  of  an  act  entitled  "An  Act  directing  the  descent  of 
intestates'  real  estates,  and  distribution  of  their  personal  estates, 
and  for  other  purposes  therein  mentioned,"  passed  April  19, 
J794>  3  Sm.  L,.  143,  absolutely. 

Section  8  of  an  act  entitled  "An  Act  supplementary  to  the  act 
entitled  'An  Act  directing  the  descent  of  intestates'  real  estates, 
and  distribution  of  their  personal  estates,  and  for  other  purposes 
therein  mentioned,'  "  passed  April  4,  1797,  3  Sm.  L,.  296,  in  so 
far  as  it  relates  to  the  orphans'  court. 

An  act  entitled  "A  further  supplement  to  the  act  entitled  'An 
Act  directing  the  descent  of  intestates'  real  estates  and  distribu- 
tion of  their  personal  estates,  and  for  other  purposes  therein 
mentioned,'  "  approved  April  2,  1804,  P.  L.  459,  absolutely. 

An  act  entitled  "A  further  supplement  to  an  act,  entitled  'An 
Act  directing  the  descent  of  intestates'  real  estates  and  distribu- 
tion of  their  personal  estates,  and  for  other  purposes  therein 
mentioned,'  "  approved  April  i,  1805,  P.  L.  205,  absolutely. 

Sections  6,  7  and  8  of  an  act  entitled  "An  Act  supplementary 
to  the  several  acts  of  this  commonwealth  concerning  partitions, 
and  for  other  purposes  therein  mentioned,"  approved  April  7, 
1807,  P.  L.  155,  absolutely,  and  Section  9  of  said  Act  in  so  far 
as  it  relates  to  the  orphans'  court. 

Section  2  of  an  act  entitled  "An  Act  to  amend  certain  parts  of 
an  Act,  entitled  'An  Act  supplementary  to  the  several  Acts  of 
this  commonwealth,  concerning  partitions  and  for  other  pur- 
poses therein  mentioned,'  "  approved  March  26,  1808,  P.  L.  144, 
absolutely. 

Sections  5  and  6  of  an  Act  entitled  "A  supplement  to  the  Act, 
entitled  'A  further  supplement  to  the  Act,  entitled  an  Act  to  alter 
the  judiciary  system  of  this  commonwealth,'  passed  the  eighth 
day  of  April,  eighteen  hundred  and  twenty-six,"  approved 
April  14,  1828,  P.  L.  484,  absolutely. 

Sections  36  to  46  inclusive,  and  48  to  51  inclusive,  of  an  Act 
entitled  "An  Act  relating  to  orphans'  courts,"  approved  March 
29,  1832,  P.  L.  190,  absolutely. 


46  PARTITION  ACT— SECTION  45 

Sections  42,  44,  45  and  46  of  an  Act  entitled  "An  Act  relating 
to  executors  and  administrators,"  approved  February  24,  1834, 
P.  L.  73,  absolutely. 

Section  2  of  an  Act  entitled  "Supplement  to  the  Act  passed 
the  twenty-ninth  day  of  March,  Anno  Domini,  one  thousand 
eight  hundred  and  thirty-two,  entitled  'An  Act  relating  to  or- 
phans' courts,'  "  approved  April  14,  1835,  P.  L.  275,  absolutely. 

Section  4  of  an  Act  entitled  "A  further  supplement  to  an  Act, 
entitled  an  Act  relating  to  orphans'  courts,  passed  the  twenty- 
ninth  day  of  March,  one  thousand  eight  hundred  and  thirty-two, 
and  the  supplement  thereto,  passed  the  fourteenth  of  April,  one 
thousand  eight  hundred  and  thirty-five,  and  for  other  purposes," 
approved  April  13,  1840,  P.  L.  319,  absolutely. 

Section  8  of  an  Act  entitled  "An  Act  to  incorporate  the  Butler 
County  Mutual  Insurance  Company,  and  for  other  purposes," 
approved  April  24,  1843,  P.  L.  359,  absolutely. 

An  Act  entitled  "An  Act  supplementary  to  the  acts  relating  to 
orphans'  courts,"  approved  April  6,  1844,  P.  L.  214,  absolutely. 

Section  I  of  an  act  entitled  "A  supplement  to  the  Act  of  As- 
sembly, passed  the  twenty-ninth  March,  one  thousand  eight 
hundred  and  thirty-two,  relating  to  the  proceedings  in  the  or- 
phans' court  of  this  commonwealth,  and  for  other  purposes," 
approved  April  15,  1845,  P.  L.  458,  absolutely. 

Section  I  of  an  Act  entitled  "An  Act  in  relation  to  partitions," 
approved  April  21,  1846,  P.  L.  426,  absolutely. 

An  Act  entitled  "An  Act  relative  to  the  orphans'  court,"  ap- 
proved March  13,  1847,  P.  L.  319,  absolutely. 

Section  4  of  an  Act  entitled  "A  supplement  to  an  act  relative 
to  the  venders  of  mineral  waters ;  and  an  act  relative  to  the 
Washington  Coal  Company;  to  sheriffs'  sales  of  real  estate;  to 
the  substitution  of  executors  and  trustees  when  plaintiffs;  to 
partition  in  the  courts  of  common  pleas,  and  for  other  pur- 
poses," approved  April  9,  1849,  P.  L.  524,  except  in  so  far  as 
it  relates  to  sales  made  before  its  date. 

Section  10  of  an  Act  entitled  "An  Act  to  enable  Thomas  Hoge 
to  make  a  fee-simple  title ;  to  enable  the  trustees  under  the  wills 
of  Ephraim  Clark  and  Catharine  Yohe,  Alex.  Calder,  admin- 
istrator, Joseph  B.  Baker,  guardian,  and  Nancy,  John,  and 
William  Kline  to  sell  certain  real  estate;  relative  to  a  school 
house  in  Elizabeth  Township,  Lancaster  County;  to  amend  the 
charter  of  the  Second  Jackson  Beneficial  Society  of  Philadelphia, 


PARTITION  ACT— SECTION  45  47 

and  to  extend  the  jurisdiction  of  the  orphans'  court,"  approved 
April  10,  1849,  P.  L.  591,  except  in  so  far  as  it  validates  partition 
proceedings  begun  before  its  date. 

Section  2  of  an  Act  entitled  "An  Act  relating  to  the  bail  of 
executrixes;  to  partition  in  the  orphans'  court  and  common 
pleas;  to  colored  convicts  in  Philadelphia;  to  the  limitation  of 
actions  against  corporations ;  to  actions  enforcing  the  payment 
of  ground  rent ;  to  trustees  of  married  women ;  to  appeals  from 
awards  of  arbitrators  by  corporations ;  to  hawkers  and  pedlers 
in  the  counties  of  Butler  and  Union ;  to  the  payment  of  costs  in 
actions  by  informers  in  certain  cases ;  to  taxing  lands  situate  in 
different  townships ;  and  in  relation  to  fees  of  county  treasurers 
of  Lycoming,  Clinton  and  Schuylkill;  to  provide  for  recording 
the  accounts  of  executors,  administrators,  guardians  and  auditors' 
reports;  and  to  amend  and  alter  existing  laws  relative  to  the 
administration  of  justice  in  this  commonwealth,"  became  a  law 
April  25,  1850,  by  reason  of  the  Governor's  failure  to  return  it 
within  ten  days,  P.  L.  569,  absolutely,  and  Section  10  of  the  same 
act  in  so  far  as  it  relates  to  the  orphans'  court. 

Sections  22  and  23  of  an  Act  entitled  "An  Act  to  incorporate 
the  Wyoming  County  Mutual  Insurance  Company;  relating  to 
Library  Street,  in  the  city  of  Philadelphia;  giving  jurisdiction 
to  the  Court  of  Common  Pleas  in  Tioga  County,  in  a  certain 
divorce  case;  and  relating  to  paving  in  front  of  the  prison  in 
the  county  of  Philadelphia,"  approved  April  26,  1850,  P.  L.  577, 
in  so  far  as  they  relate  to  recognizances  in  partition. 

Section  i  of  an  Act  entitled  "An  Act  relative  to  suits  in  dower 
and  partition,"  approved  February  20,  1854,  P.  L.  89,  in  so  far 
as  it  relates  to  the  orphans'  court. 

An  Act  entitled  "A  further  supplement  to  the  Act,  entitled 
'An  Act  relating  to  orphans'  courts,'  passed  the  twenty-ninth 
day  of  March,  one  thousand  eight  hundred  and  thirty-two,"  ap- 
proved April  12,  1855,  P.  L.  214,  absolutely. 

Section  4  of  an  Act  entitled  "An  Act  to  amend  certain  defects 
of  the  law  for  the  more  just  and  safe  transmission  and  secure 
enjoyment  of  real  and  personal  estate,"  approved  April  27,  1855, 
P.  L.  368,  in  so  far  as  it  relates  to  the  orphans'  court. 

Sections  i  and  2  of  an  Act  entitled  "A  supplement  to  an  Act 
relative  to  suits  in  dower  and  partition,  passed  twentieth  Febru- 
ary, one  thousand  eight  hundred  and  fifty-four,"  approved  April 
17,  1856,  P.  L.  386,  absolutely. 


48  PARTITION  ACT— SECTION  45 

Section  10  of  an  Act  entitled  "An  Act  for  the  greater  certainty 
of  title  and  more  secure  enjoyments  of  real  estate,"  approved 
April  22,  1856,  P.  L.  532,  in  so  far  as  it  relates  to  the  orphans' 
court. 

An  Act  entitled  "An  Act  requiring  administrators  and  trustees, 
upon  the  sale  of  real  estate,  after  proceedings  in  partition,  to  file, 
in  the  register's  office  of  the  proper  county,  an  account  of  their 
said  administration,  or  trusteeship,"  approved  April  u,  1863, 
P.  L.  341,  absolutely. 

An  Act  entitled  "An  Act  relative  to  costs  in  cases  of  partition," 
approved  April  27,  1864,  P.  L.  641,  in  so  far  as  it  relates  to  the 
orphans'  court. 

An  Act  entitled  "An  Act  relating  to  the  committees  of  the 
estates  of  lunatics  and  habitual  drunkards,"  approved  March  22, 
1856,  P.  L.  31,  in  so  far  as  it  relates  to  the  orphans'  court. 

An  Act  entitled  "An  Act  relating  to  proceedings  in  partition," 
approved  March  27,  1865,  P.  L.  45,  absolutely. 

An  Act  entitled  "A  supplement  to  an  Act  relating  to  orphans' 
courts,  approved  the  twenty-ninth  day  of  March,  Anno  Domini 
one  thousand  eight  hundred  and  thirty-two,"  approved  January  7, 
1867,  P.  L.  1367,  absolutely. 

An  Act  entitled  "An  Act  to  extend  the  jurisdiction  of  the 
orphans'  court  of  York  and  Fayette  Counties,"  approved  Febru- 
ary 13,  1867,  P.  L.  160,  absolutely. 

An  Act  entitled  "An  Act  to  repeal  a  portion  of  an  Act,  entitled 
'An  Act  relating  to  proceedings  in  partition,'  approved  the 
twenty-seventh  day  of  March,  Anno  Domini  one  thousand  eight 
hundred  and  sixty-five,"  approved  April  28,  1868,  P.  L.  105, 
absolutely. 

An  Act  entitled  "A  supplement  to  an  Act,  entitled  'An  Act 
relative  to  the  orphans'  court,'  approved  the  thirteenth  day  of 
March,  one  thousand  eight  hundred  and  forty-seven,  confirming 
certain  partitions,"  approved  February  26,  1869,  P.  L.  4,  except 
in  so  far  as  it  confirms  partitions  made  before  its  date. 

An  Act  entitled  "A  further  supplement  to  an  Act,  entitled 
'An  Act  relative  to  suits  in  dower  and  partition,'  approved  the 
twentieth  day  of  February,  Anno  Domini  one  thousand  eight 
hundred  and  fifty-four,  and  its  supplement,  approved  the  seven- 
teenth day  of  April,  Anno  Domini  one  thousand  eight  hundred 
and  fifty-six,"  approved  March  30,  1869,  Pr  L,.  15,  in  so  far  as  it 
relates  to  the  orphans'  court. 


PARTITION  ACT— SECTION  45  49 

An  Act  entitled  "A  supplement  to  the  Act  relating  to  orphans' 
courts,  approved  the  twenty-ninth  day  of  March,  Anno  Domini 
one  thousand  eight  hundred  and  thirty-two,"  approved  April  13, 
1869,  P.  L.  28,  except  in  so  far  as  it  relates  to  declarations  there- 
tofore made  by  married  women. 

Section  2  of  an  Act  entitled  "An  Act  relating  to  dowers," 
approved  April  20,  1869,  P.  L.  77,  absolutely. 

An  Act  entitled  "A  further  supplement  to  an  Act  relating  to 
orphans'  court,  approved  the  twenty-ninth  day  of  March,  one 
thousand  eight  hundred  and  thirty-two,  regulating  the  sale  of 
real  estate  by  executors,  administrators  or  trustees,"  approved 
May  23,  1871,  P.  L.  274,  absolutely. 

An  Act  entitled  "A  further  supplement  to  an  Act  relative  to 
suits  in  dower  and  partition,  approved  the  twentieth  day  of  Febru- 
ary, Anno  Domini  one  thousand  eight  hundred  and  fifty-four,  and 
its  supplement,  approved  the  thirtieth  day  of  March,  Arino 
Domini  one  thousand  eight  hundred  and  sixty-nine,  construing 
said  Act  and  extending  jurisdiction  of  the  courts  therein,"  ap- 
proved May  14,  1874,  P.  L.  156,  in  so  far  as  it  relates  to  the 
orphans'  court. 

An  Act  entitled  "An  Act  relating  to  the  estates  of  decedents," 
approved  May  14,  1874,  P.  L.  166,  absolutely. 

An  Act  entitled  "An  Act  enlarging  the  powers  of  the  orphans' 
court  in  regard  to  fixing  the  time  for  the  payment  of  owelty," 
approved  May  8,  1876,  P.  L.  140,  absolutely. 

An  Act  entitled  "An  Act  relating  to  partition  of  real  estate," 
approved  May  i,  1879,  P.  L.  40,  in  so  far  as  it  relates  to  the 
orphans'  court. 

An  Act  entitled  "An  Act  to  provide  for  the  keeping  of  a 
partition  docket  by  the  several  clerks  of  the  orphans'  courts," 
approved  April  4,  1889,  P.  L.  23,  absolutely. 

An  Act  entitled  "An  Act  to  enlarge  the  jurisdiction  of  the 
orphans'  courts  in  cases  of  testacy,"  approved  May  9,  1889, 
P.  L.  146,  absolutely. 

An  Act  entitled  "An  Act  relating  to  sale  of  the  real  estate  of 
decedents,"  approved  June  12,  1893,  P.  L.  461,  absolutely. 

An  Act  entitled  "An  Act  relating  to  the  partition  of  real  estate, 
empowering  the  courts  having  jurisdiction  to  decree  and  approve 
and  to  approve,  ratify  and  confirm  private  sales,"  approved 
May  22,  1895,  P.  L.  114,  in  so  far  as  it  relates  to  the  orphans' 
court. 


5O  PARTITION  ACT— SECTION  45 

An  Act  entitled  "An  Act  to  provide  for  the  liability  of  tenants 
in  common  in  possession  to  their  co-tenants  out  of  possession," 
approved  June  24,  1895,  P.  L.  237,  in  so  far  as  it  relates  to  the 
orphans'  court. 

An  Act  entitled  "An  Act  relating  to  proceedings  in  partition 
and  other  actions,  and  for  the  appointment  of  committees,  ad 
litem,  therein  when  any  of  the  defendants  are  lunatic,"  approved 
June  26,  1895,  P.  L.  381,  in  so  far  as  it  relates  to  the  orphans1 
court. 

An  Act  entitled  "An  Act  amending  an  Act,  entitled  'An  Act 
relating  to  proceedings  in  partition  and  other  actions,  and  for 
the  appointment  of  committees,  ad  litem,  therein  when  any  of  the 
defendants  are  lunatic  or  persons  of  weak  mind/  approved  the 
twenty-sixth  day  of  June,  one  thousand  eight  hundred  and  ninety- 
five,  so  as  to  extend  the  same  to  proceedings  in  the  orphans' 
court  and  to  enlarge  the  powers  of  said  committees,"  approved 
June  10,  1901,  P.  L.  533,  in  so  far  as  it  relates  to  the  orphans' 
court. 

An  Act  entitled  "An  Act  relating  to  partition  of  real  estate, 
and  the  appointment  of  a  trustee  to  satisfy  liens  and  to  invest 
the  moneys  coming  into  his  hands  by  proceeding  in  partition," 
approved  April  3,  1903,  P.  L.  151,  in  so  far  as  it  relates  to  the 
orphans'  court. 

An  Act  entitled  "A  supplement  to  an  Act,  entitled  'An  Act 
for  the  greater  certainty  of  title  and  more  secure  enjoyment  of 
real  estate,'  approved  the  twenty-second  day  of  April,  one  thou- 
sand eight  hundred  and  fifty-six;  so  as  to  authorize  a  widow 
to  accept  real  estate  in  partition,  or  compete  in  bidding  therefor, 
and  regulating  and  establishing  a  mode  of  payment  therefor  by 
the  widow,"  approved  June  I,  1907,  P.  L.  364,  in  so  far  as  it 
relates  to  the  orphans'  court. 

An  Act  entitled  "An  Act  to  amend  an  Act,  entitled  'A  supple- 
ment to  an  Act,  entitled  "An  Act  for  the  greater  certainty  of 
title  and  more  secure  enjoyment  of  real  estate,"  approved  twenty- 
second  day  of  April,  Anno  Domini  eighteen  hundred  and  fifty-six ; 
so  as  to  authorize  a  widow  to  accept  real  estate  in  partition,  or 
compete  in  bidding  therefor,  and  regulating  and  establishing  a 
mode  of  payment  therefor  by  the  widow/  approved  the  first  day 
of  June,  Anno  Domini  nineteen  hundred  and  seven ;  by  pro- 
viding the  method  by  which  the  dower  interests  of  the  widow,  and 
the  principal  of  the  dower  fund,  should  be  secured  in  certain 


PARTITION  ACT— SECTION  45  51 

cases,"  approved  May  8,  1909,  P.  L.  489,  in  so  far  as  it  relates 
to  the  orphans'  court. 

An  Act  entitled  "An  Act  to  amend  the  Act,  approved  the 
twelfth  day  of  June,  Anno  Domini  one  thousand  eight  hundred 
ninety-three,  entitled  'An  Act  relating  to  sale  of  the  real  estate 
of  decedents,'  "  approved  May  23,  1913,  P.  L.  304,  absolutely. 

An  Act  entitled  "An  Act  to  amend  section  three  of  an  Act, 
approved  the  fourteenth  day  of  May,  Anno  Domini  one  thousand 
eight  hundred  seventy-four,  entitled  'A  further  supplement  to 
an  Act  relative  to  suits  in  dower  and  partition,  approved  the 
twentieth  day  of  February,  Anno  Domini  one  thousand  eight 
hundred  and  fifty-four,  and  its  supplement,  approved  the  thirtieth 
day  of  March,  Anno  Domini  one  thousand  eight  hundred  and 
sixty -nine,  construing  said  Act  and  extending  jurisdiction  of  the 
courts  therein,'  by  extending  the  provisions  thereof  to  include 
persons  having  an  undivided  interest  in  the  land,  or  in  the  coal 
or  timber  thereon,  when  the  same  has  not  been  entirely  severed, 
and  permitting  such  persons  to  compel  partition  of  the  entire 
tract,"  approved  May  6,  1915,  P.  L.  269,  in  so  far  as  it  relates 
to  the  orphans'  court. 

All  other  Acts  of  Assembly,  or  parts  thereof,  that  are  in  any 
way  in  conflict  or  inconsistent  with  this  Act,  or  any  part  thereof, 
are  hereby  repealed. 


THE  ORPHANS'  COURT  ACT 

of 
June  7,  1917  (P.  L.  363) 


PRELIMINARY  NOTE  BY  COMMISSION 

In  revising  the  statutes  relative  to  the  orphans'  court  the 
Commissioners  have  not  found  it  necessary  or  considered  it 
advisable  to  recommend  any  changes  of  serious  importance  in 
its  jurisdiction  or  procedure. 

In  Section  18  (a),  3  and  5,  the  writ  of  fi.  fa.  issued  out  of  the 
orphans'  court  has  been  limited  to  personal  property;  and  in 
Section  18  (e),  provision  has  been  made  for  filing  in  the  court  of 
common  pleas  transcripts  of  orders  of  the  orphans'  court  for 
payment  of  money  by  others  than  fiduciaries,  and  for  executions 
thereon  against  real  property. 

In  Section  20  (b)  and  (d),  the  powers  of  the  court  in  con- 
nection with  the  taking  and  perpetuation  of  testimony  are  revised 
and  enlarged. 

In  Section  20  (e)  I,  the  Commissioners  have  inserted  a  pro- 
vision which  is  understood  to  conform  with  the  prevailing  prac- 
tice, according  to  which  on  appeals  from  the  Register  of  Wills 
the  proceedings  shall  be  de  novo  unless  by  agreement  the  appeal 
be  heard  on  the  testimony  taken  before  the  Register;  the  court 
having  the  right,  however,  to  require  the  production  of  witnesses. 

In  several  sections  the  court  is  given  enlarged  powers  with 
respect  to  the  service  of  citations  and  notices  to  parties  inter- 
ested in  estates,  and  to  those  amenable  to  the  jurisdiction  of  the 
court,  including  attachments  to  enforce  obedience  to  its  orders. 

In  general,  the  method  of  giving  notices  to  persons  interested 
has  been  left  to  be  fixed  by  general  rules  of  court  or  special 
orders  in  particular  cases,  the  Commissioners  considering  that 
fixed  statutory  regulations  are  often  inappropriate. 

TABLE  OF  CONTENTS 

1917  Section 

Pamphlet  Number 

Laws  Herein 

The  Orphans'  Court  Act 363  66 

Section  i.  Organization  of  court,  366  67 

(a)  Court  to  continue  to  exist  in  each  county,  67 

52 


ORPHANS'  COURT  ACT— CONTENTS 


53 


1917  Section 

Pamphlet        Number 

Laws  Herein 

(b)  Separate     orphans'     courts     in     certain 

counties;     judges,   their    election,    com- 
missions and  salaries,    68 

(c)  Composition  of  orphans'  court  where  not 

separate,    367  69 

(d)  President    judge    of    separate    orphans' 

court,   70 

1.  Senior  judge;   drawing  lots, 70 

2.  Where  only  one  judge,  71 

3.  Re-election,    , . . .  72 

4.  Where    two    or    more    judges    are 

elected  at  same  election,  73 

Section  2.  Court  to  be  a  court  of  record;  proceed- 
ings not  to  be  collaterally  attacked, 368  74 

Section  3.  Calling  in  judges  of  other  districts  when 

judge  of  district  is  unable  to  sit, 75 

(a)  Power  to  call  in  other  judge,  75 

(b)  Compensation  and  carfare, 76 

Section  4.  Common  pleas  judges  sitting  in  separate 

orphans'  court,    77 

(a)  Power  to  act,  77 

(b)  Not  compelled  to  act,  369  78 

(c)  When  president  judge  absent  or  disabled 

other  judge  may  call  in  common  pleas 

judge 79 

(d)  Mileage  and  expenses,  80 

Section  5.  Orphans'  court  judges  sitting  in  courts  of 

common   pleas   or   criminal   courts, 81 

(a)  Power  to  act 81 

(b)  Not  compelled  to  act 82 

(c)  When  president  judge  absent  or  disabled 

other  judge  may  call  in  orphans'  court 

judge, 370  83 

(d)  Mileage  and  expenses 84 

Section  6.  Seal  of  court,  85 

Section  7.  Court  rooms,    86 

Section  8.  Clerk  of  court,   87 

(a)  Register  of  wills  to  be  clerk  in  counties 

having  separate  orphans'  court;    other 

counties, 87 

(b)  Duties  of  clerk,  88 

1.  Custody     of     records ;     duties     in 

general,  88 

2.  Dockets ;    records  of  accounts ;  and 

auditors'   reports,    371  89 


54 


ORPHANS'  COURT  ACT— CONTENTS 


1917  Section 
Pamphlet       Number 

Laws  Herein 
3.  Translations  of  papers  in  other  than 

English  language,   90 

(c)  Bill  of  costs,   91 

Section  9.  Jurisdiction,    92 

(a)  Guardians,   93 

(b)  Trustees, 372  94 

(c)  Trustees  durante  absentia,  95 

(d)  Executors  and  administrators,  96 

(e)  Distribution  of  decedents'  estates,   97 

(f)  Sale  of  real  estate  for  payment  of  debts 

of  decedents,  98 

(g)  Disposition  of  title  to  real  estate  to  render 

the  same  freely  alienable,  et  cetera, 99 

(h)  Partition,    IOO 

(i)  Specific  execution  of  decedents'  contracts 

as  to  real  estate,  101 

( j )  Legacies,  102 

(k)  Discharge  of  liens  and  charges, 103 

(1)  Where   executors,   administrators,   guard- 
ians or  trustees  are  possessed  of  or  ac- 

.  countable  for  estate  of  decedent 104 

(m)  Appeals   and   proceedings   certified    from 

registers  of  wills,   105 

(n)  Incidental  and  additional  powers,   106 

Section  10.  Rules   of   court,    107 

Section  1 1.  Time    of    holding   court 373  108 

Section  12.  Notice   to   parties,    109 

(a)  In  general 109 

(b)  Publication,    no 

Section  13.  Attestation  of  process,  et  cetera, in 

Section  14.  Return-days  of  process, 112 

Section  15.  Proceedings  in  vacation,   113 

Section  16.  Injunctions,   1 14 

Section  17.  Proceedings  to  obtain  appearance;  cita- 
tions, procedure  in  default  of  appearance        374  115 

(a)  Awarding   citation,    116 

(b)  By  whom  to  be  served,    117 

(c)  Manner   of    service,    1 18 

(d)  Place    of    service,    119 

(e)  Service   on   sureties,    120 

(f )  Return  of  service,  121 

(g)  Alias  and  pluries  citations,   122 

(h)  Order  of  publication  on  award  of  alias 

or  pluries  citation,    375  123 


ORPHANS'  COURT  ACT— CONTENTS 


55 


1917  Section 

Pamphlet       Number 
Laws  Herein 

(i)  Default  of  appearance, 124 

1.  Power  of  court  to  proceed, 124 

2.  Method  of  proceeding, 125 

Section  18.  Proceedings  to  compel  obedience  to  or- 
ders and  decrees,   126 

(a)  Modes  of  enforcing  orders  and  decrees,  126 

1.  Attachment  of  the  person, 127 

2.  Sequestration,  128 

3.  Fi.  fa 129 

4.  Attachment  execution,  130 

5.  Testatum  fi.  fa.,   376  131 

(b)  Procedure  on  attachment  or  sequestration,  132 

1.  Direction  of  writs,    132 

2.  Issuance     of     process     to     other 

counties,   133 

3.  Form  of  writ  of  sequestration, 134 

4.  Sequestration  not  to  abate  on  death 

of    party,    377  135 

5.  Filing  copy  of  writ  of  sequestration 

in  prothonotary's  office,   136 

6.  Issuance  of  attachment  or  seques- 
tration where  party  absconds, 137 

7.  Dissolution  of  attachment  or  seques- 
tration,      138 

8.  Discharge   of   persons   attached   as 

for  contempt,   139 

9.  Procedure  where  party  is  wasting 
trust    property,     or     is     about    to 

abscond,   378  140 

10.  Enforcement  of  final  order  and  de- 
cree  for  delivery  of   trust   prop- 
erty,     141 

11.  Order  as  to  final  disposition  of  trust 

property,    142 

12.  Decree  in  sequestration  proceedings 
when   party   does   not   appear;    se- 
curity by  complainant,  143 

13.  Reopening  of  such  decree, 379  144 

14.  Failure  of  respondent  to  apply  for 

reopening,  145 

(c)  Process  to  recover  fines,  forfeitures  and 
amercements,   146 

(d)  Direction   of,   and   procedure   on,    writs 

of  fi.   fa.,    147 


ORPHANS'  COURT  ACT— CONTENTS— TITLE 


1917 
Pamphlet 

Laws 

(e)  Transcripts  to  the  common  pleas  of 
orders  upon  parties,  other  than  fiduci- 
aries, to  pay  money,  

1.  Filing  transcripts  and  effect  thereof ; 
executions,  

2.  Satisfaction      and      discharge      of 
judgments  on  transcripts 380 

Section  19.  Fees  of  sheriff;    mileage;    postage, 

Section  20.  Witnesses  and  evidence, 

(a)  Subpoenas,    

(b)  Methods   of   taking   testimony, 

1.  In  general,    

2.  Depositions    of    aged,    infirm,    and 
going  witnesses;    commissions,  and 
letters  rogatory,  381 

3.  Oral  deposition  outside  of  State,. . 

(c)  Production  of  books  and  papers, 

(d)  Perpetuation  of  testimony, 

(e)  Testimony  in  proceedings  removed  from 

register  of  wills, 382 

1.  What  testimony  to  be  basis  of  de- 
cision  

2.  Testimony  taken  in  orphans'  court 
to  be  reduced  to  writing, 

Section  21.  Issues  to  the  common  pleas,   

(a)  In  general, 

(b)  In  proceedings  removed  from  register  of 
wills 

(c)  On  distribution  of  proceeds  of  sales  of 

real  estate,   383 

1.  Affidavit, 

2.  Investment  of  fund  pendente  lite, 
Section  22.  Appeals,   

(a)  Right  of   appeal;    effect  of  appeal,.... 

(b)  Disposition  of  cases  on  appeal, 384 

Section  23.  Short  title  section,  

Section  24.  Repealer,    384-8 


66.     TITLE. 


Section 

Number 

Herein 


148 
148 

149 
ISO 
151 
I5i 
152 
152 


153 
154 
155 
156 

157 
157 

158 

159 
159 

160 

161 
161 
162 

163 

163 
164 

165 
166 


AN  ACT 


Relating  to  the  organization,  jurisdiction  and  procedure  of  the 
orphans'  court,  the  powers  and  duties  of  the  judges  thereof, 
and  appeals  therefrom. 


ORPHANS'  COURT  ACT— SECTION  i  (o),  (&)  57 

67.  ORGANIZATION  OF  COURT;— COURT  TO  CON- 

TINUE TO  EXIST  IN  EACH  COUNTY. 

SECTION  i.  (a)  Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  Commonwealth  of  Pennsylvania  in  Gen- 
eral Assembly  met,  and  it  is  hereby  enacted  by  the  authority  of 
the  same,  That,  In  every  county  of  this  commonwealth,  there 
shall  continue  to  exist,  as  heretofore,  a  court  of  record,  the  name 
and  style  whereof  shall  be  "The  Orphans'  Court  of  (the  respec- 
tive) County." 

NOTE. — This  is  founded  on  Section  i  of  the  Act  of  May  19,  1874,  P.  L,. 
206,  3  Purd.  3360,  which  provides  that  such  court  shall  be  "organized 
and  holden,  on  and  after  the  first  Monday  of  January,  1875."  It  is 
recommended  that  said  section  be  not  repealed. 

68.  SEPARATE     ORPHANS'     COURT     IN     CERTAIN 

COUNTIES;  JUDGES,  THEIR  ELECTION,  COM- 
MISSIONS AND  SALARIES. 

(&)  In  the  counties  of  Philadelphia,  Allegheny,  Luzerne, 
Berks,  Schuylkill,  Westmoreland,  Montgomery,  Lancaster, 
Lackawanna  and  Fayette,  the  orphans'  court  shall  be  a  separate 
court  of  record,  which  shall  consist,  in  the  county  of  Philadel- 
phia, of  five  judges  learned  in  the  law,  any  one  of  whom  may 
hold  the  said  court,  and  hear  and  determine  all  matters  and 
things  therein  cognizable,  in  the  county  of  Allegheny  of  three 
judges  learned  in  the  law,  any  one  of  whom  may  hold  the  said 
court  and  hear  and  determine  all  matters  and  things  therein 
cognizable,  and  in  the  counties  of  Luzerne,  Berks,  Schuylkill, 
Westmoreland,  Montgomery,  Lancaster,  Lackawanna  and  Fay- 
ette, each,  of  one  judge  learned  in  the  law;  and  the  said  judges 
shall  be  elected  at  the  same  elections,  and  be  commissioned  for 
the  same  term  and  in  the  same  manner  as  the  judges  of  the  courts 
of  common  pleas  of  the  respective  counties  where  separate 
orphans'  courts  are  or  shall  be  established.  In  the  counties 
where  separate  orphans'  courts  are  or  shall  be  established,  the 
annual  salaries  of  said  judges  shall  be  the  same  as  are  paid  to 
the  judges  of  the  courts  of  common  pleas  in  the  respective 
counties  where  such  orphans'  courts  are  or  shall  be  established, 
to  be  paid  in  the  same  manner  as  the  salaries  of  said  judges  of 
the  courts  of  common  pleas  are  now,  or  may  be  by  law,  payable. 

NOTE.— This  is  Section  3  of  May  19,  1874,  P.  L.  206,  3  Purd.  3360,  as 
amended  by  the  Act  of  June  13,  1883,  F.  L.  91,  further  amended  so  as 


58  ORPHANS'  COURT  ACT— SECTION  i  (i>),  (c),  (rf)  i 

to  conform  to  the  subsequent  legislation  establishing  separate  orphans' 
courts  in  counties  other  than  Philadelphia,  Allegheny  and  Luzerne,  by 
adding,  in  two  places,  after  "hold  the  said  court,"  the  words,  "and  hear 
and  determine,"  etc.,  and  by  altering  the  provision  that  the  judges  shall 
be  elected  "at  the  next  general  election." 

Separate  orphans'  courts  have  been  established  as  follows :  Bterks 
County,  by  Act  of  June  13,  1883,  P.  L.  97;  Schuylkill  County,  by 'Act  of 
March  28,  1895,  P.  L.  31;  Westmoreland  County  by  Act  of  April  n, 
1901,  P.  L.  71;  Montgomery  County,  by  Act  of  May  2,  1901,  P.  L.  117; 
Lancaster  County,  by  Act  of  July  n,  1901,  P.  L.  655;  Lackawanna 
County,  by  Act  of  July  n,  1901,  P.  L-  657;  and  Fayette  County,  by  Act 
of  May  25,  1907,  P.  L.  260. 

The  Act  of  1874  provided  for  three  judges  in  Philadelphia  County. 
The  Act  of  April  28,  1887,  P.  L.  72,  3  Purd.  3361,  provided  for  an  addi- 
tional judge,  and  the  Act  of  March  22,  1907,  P.  L.  26,  6  Purd.  7034, 
provided  for  a  fifth  judge. 

The  Act  of  1874  provided  for  one  judge  in  Allegheny  County.  The 
Act  of  May  5,  1881,  P.  L.  12,  added  another  judge,  and  the  Act  of  July 
18,  1901,  P.  L.  669,  added  a  third. 

These  acts  are  not  recommended  for  repeal. 

Since  the  passage  of  this  act  separate  orphans'  courts  have  been  estab- 
lished as  follows:  Cambria  County  by  Act  of  June  4,  1919,  P.  L.  372; 
Washington  County  by  Act  of  July  8,  1919,  P.  L.  736;  Delaware  County 
by  Act  of  April  n,  1921,  P.  L.  121,  and  Erie  County  by  Act  No.  397,  May 
24,  1921. 

69.  COMPOSITION   OF  ORPHANS'   COURT  WHERE 

NOT  SEPARATE. 

(c)  The  orphans'  court  of  each  county,  except  in  the  counties 
where  separate  orphans'  courts  are  or  shall  be  established  by  law, 
shall  be  composed  of  the  judge  or  judges,  when  there  are  more 
than  one,  of  the  court  of  common  pleas  thereof ;    but  any  one 
judge  learned  in  the  law  shall  have  power  to  hold  the  court,  and 
hear  and  determine  all  matters  and  things  therein  cognizable. 

NOTE. — This  is  Section  2  of  the  Act  of  May  19,  1874,  P.  L.  206,  3  Purd. 
3360,  except  that,  in  lines  2  and  3,  the  words  beginning  with  "where"  and 
ending  with  "law"  have  been  substituted  for  "of  Philadelphia,  Allegheny 
and  Luzerne." 

The  repeal  of  the  Act  of  April  7,  1876,  P.  L.  19,  3  Purd.  3725,  is  rec- 
ommended, so  far  as  it  relates  to  the  orphans'  court,  since  the  above 
provisions  of  the  Act  of  1874  cover  the  matter. 

70.  PRESIDENT   JUDGE   OF   SEPARATE   ORPHANS' 

COURT;   SENIOR  JUDGE;   DRAWING  LOTS. 

(d)  I.  In  all  counties  in  which  there  is  or  hereafter  may  be 
established  a  separate  orphans'  court,  the  governor  shall  issue  a 


ORPHANS'  COURT  ACT— SECTION  i  (<f)  i,  2,  3,  4-2  59 

commission  as  president  of  said  court,  to  the  judge  of  said  court, 
who  shall  be  the  oldest  in  commission  and  continuous  service; 
and  if  there  shall  be  two  or  more  judges  of  any  of  said  courts, 
whose  commissions  are  of  the  same  date,  and  whose  term  of  serv- 
ice commenced  at  the  same  time,  they  shall  draw  lots  for  a  com- 
mission as  president  of  said  court,  and  certify  the  result  to  the 
governor,  who  shall  issue  a  commission  as  president  of  said  court 
to  the  judge  who  shall  draw  the  right  to  receive  the  same. 

NOTE. — This  and  the  following  paragraphs  of  the  present  clause  are 
copied  from  Sections  i  to  4  of  the  Act  of  May  24,  1878,  P.  L.  131,  3  Purd. 
336i. 

71.  WHERE  ONLY  ONE  JUDGE. 

2.  In  all  separate  orphans'  courts,  composed  of  only  one  judge, 
he  shall  be  styled  the  president  judge  of  said  court,  and  be  com- 
missioned as  such. 

72.  RE-ELECTION. 

3.  When  the  president  judge  of  any  of  said  courts  shall  be  re- 
elected,  he  shall  be  again  commissioned  as,  and  continue  to  be  the 
president  judge  of  said  court;  and  when  the  said  president  judge 
shall  go  out  of  office,  the  judge  of  said  court  who  shall  be  oldest 
in  commission  and  continuous  service  shall  be  commissioned  as, 
and  be  the  president  judge  thereof. 

NOTE. — In  this  clause,  the  word  "as"  has  been  inserted  after  "commis- 
sioned" in  two  places. 

73.  WHERE  TWO  OR  MORE  JUDGES  ARE  ELECTED 

AT  SAME  ELECTION. 

4.  Whenever,  at  any  election,  two  or  more  judges  of  any  of 
said  courts  are  elected,  who  shall  not  have  been  commissioned 
and  served  as  judges  of  said  court  immediately  before  the  com- 
mencement of  the  terms  for  which  they  were  elected,  they  shall 
draw  lots  for  priority  of  commission,  and  certify  the  result  to  the 
governor,  who  shall  issue  the  commissions  of  said  judges  on 
different  days,  giving  the  priority  of  commission  to  the  judge 
drawing  the  right  to  receive  the  same. 

NOTE. — In  this  clause,  the  word  "general"  is  omitted  before  "election" 
in  the  first  line. 

74.  COURT  TO  BE  A  COURT  OF  RECORD;  PRO- 

CEEDINGS NOT  TO  BE  COLLATERALLY  AT- 
TACKED. 

SECTION  2.  The  orphans'  court  of  each  county,  whether  sep- 
arate or  otherwise,  is  hereby  declared  to  be  a  court  of  record, 


60  ORPHANS'  COURT  ACT— SECTIONS  2-3  (a),  (fr) 

with  all  the  qualities  and  incidents  of  a  court  of  record  at  common 
law.  Its  proceedings  and  decrees,  in  all  matters  within  its  juris- 
diction, shall  not  be  reversed  or  avoided  collaterally  in  any  other 
court;  but  they  shall  be  liable  to  reversal,  modification  or  alter- 
ation on  appeal. 

NOTE. — This  is  Section  2  of  the  Act  of  March  29,  1832,  P.  L.  190,  3  Purd. 
3360,  altered  by  inserting  in  lines  i  and  2  the  words  "of  each  county, 
whether  separate  or  otherwise,"  and  by  omitting,  at  the  end,  the  words 
"to  the  supreme  court,  as  hereinafter  directed." 

75.  CALLING    IN    JUDGES    OF    OTHER    DISTRICTS 

WHEN  JUDGE   OF  DISTRICT  IS  UNABLE  TO 
SIT;— POWER  TO  CALL  IN  OTHER  JUDGE. 

SECTION  3.  (a)  Whenever,  by  reason  of  sickness,  absence,  in- 
terest or  other  cause,  a  judge  of  any  separate  orphans'  court, 
or  a  judge  of  the  court  of  common  pleas  in  a  judicial  district 
having  no  separate  orphans'  court,  may  be  unable  to  sit  in  any 
matter  depending  in  the  orphans'  court  of  such  district,  and  there 
shall  be  no  other  judge  of  the  orphans'  court  or  of  the  court  of 
common  pleas  of  such  district  available  for  the  purpose,  it  shall 
be  lawful  for  said  judge  to  call  upon  any  judge  of  a  separate 
orphans'  court  of  any  other  judicial  district  of  this  common- 
wealth, or  any  judge  of  the  court  of  common  pleas  of  any  other 
judicial  district  having  no  separate  orphans'  court,  to  preside  in 
and  determine  such  matter,  with  the  same  force  and  effect  as  he, 
the  regular  commissioned  judge  of  such  district,  if  presiding, 
might  do. 

NOTE.— This  is  Section  i  of  the  Act  of  March  4,  1875,  P.  L.  5,  3  Purd. 
3372,  modified  so  as  to  apply  in  all  cases  thus  meeting  the  decision  in 
Livingston's  Appeal,  88  Pa.  209,  that  the  Act  of  1875  applied  only  to 
counties  having  separate  orphans'  courts  and  that  a  judge  of  such  a  court 
could  not  be  called  in  to  sit  in  a  county  having  no  separate  orphans'  court, 
where  the  orphans'  court  must  be  held  by  a  common  pleas  judge. 

The  new  section  is  intended  to  supply  not  only  the  Act  of  1875,  but  also, 
so  far  as  the  orphans'  court  is  concerned,  Section  8  of  the  Act  of  April 
4,  1843,  P-  L.  133,  3  Purd.  3371,  extending  to  the  orphans'  court  and  the 
criminal  courts  the  provisions  of  Sections  37-41  of  the  Act  of  April  14, 
1834,  P.  L.  349,  i  Purd.  632. 

76.  COMPENSATION  AND  CARFARE. 

(b)  Such  judge  of  another  judicial  dictrict  called  in  as  pro- 
vided by  clause  (a)  of  this  section  shall  be  entitled  to  receive 


ORPHANS'  COURT  ACT— SECTIONS  3  (&)-4  (a),  (6),  (c)        6l 

as  compensation  for  so  presiding,  the  sum  of  twenty  dollars  a 
day  and  carfare,  and  no  more.  No  payment  shall  be  made  for 
any  day  consumed  in  such  service  of  more  than  expenses  and 
carfare,  unless  said  judge,  so  assigned,  actually  presides  in  open 
court  on  such  day. 

NOTE. — This  is  modeled  upon  part  of  Section  5  of  the  Act  of  April  27, 
191 1,  P.  L.  101,  5  Purd.  5540,  relating  to  judges  of  the  courts  of  common 
pleas. 

77.  COMMON    PLEAS    JUDGES    SITTING    IN    SEP- 

ARATE ORPHANS'  COURT;— POWER  TO  ACT. 

SECTION  4.  (a)  The  judges  of  the  court  of  common  pleas  of 
any  judicial  district  having  a  separate  orphans'  court  shall,  when 
called  upon  by  the  president  judge  of  such  separate  orphans' 
court,  as  hereinafter  provided,  have  power  to  hear  and  determine, 
when  certified  according  to  the  provisions  of  clause  (&)  of  this 
section,  all  matters,  causes  and  things  whatsoever,  in  such  separate 
orphans'  court,  so  fully  and  effectually,  and  to  dispose  thereof 
in  the  same  manner,  as  may  be  done  by  the  judges  of  said  separate 
orphans'  court  sitting  therein. 

NOTE. — This  and  the  following  clauses  of  this  section  are  copied,  with 
slight  changes  in  phraseology,  from  Sections  I  to  4  of  the  Act  of  April  21, 
1915,  P.  L.  156,  5  Purd.  5541.  Section  5  is  a  general  repealer.  In  clause 
(d)  the.  provision  as  to  mileage  and  expenses  has  been  added  to  conform 
to  the  Act  of  1913,  Section  5  (d},  infra.  (See  84  infra.) 

The  Act  of  1915  is  recommended  for  repeal. 

78.  JUDGES  NOT  COMPELLED  TO  ACT. 

(b)  Nothing  in  this  section  shall  be  construed  to  make  it  com- 
pulsory upon  the  judges  of  said  court  of  common  pleas  to  render 
the  services  aforesaid ;  but  whenever  the  proper  despatch  of  busi- 
ness requires  it,  and  an  arrangement  can  be  made  with  a  judge 
of  such  court  of  common  pleas  for  such  service,  the  president 
judge  of  the  separate  orphans'  court  of  the  said  district  may 
certify  all  matters  to  be  heard  and  determined  by  such  judge  of 
the  court  of  common  pleas,  specially  presiding  as  aforesaid. 

79.  WHEN    PRESIDENT    JUDGE    ABSENT    OR    DIS- 

ABLED OTHER  JUDGE  MAY  CALL  IN  COMMON 
PLEAS  JUDGE. 

(c)  In  judicial  districts  having  more  than  one  judge  of  the  sep- 
arate  orphans'   court,   whenever  the   president  judge   of    such 


62          ORPHANS'   COURT  ACT— SECTIONS  4  (O,    (<0-5  (o) 

court  shall  be  absent  from  the  district  or  disabled  by  sickness, 
and  occasion  shall  occur,  it  shall  be  competent  for  the  judge  next 
oldest  in  commission,  being  then  in  the  district  and  able  to  act,  to 
arrange  for  the  services  herein  provided  for,  and  to  make  the  nec- 
essary certificates  in  like  manner  and  to  the  same  intent,  effect, 
and  purpose  as  the  same  could  be  done  by  the  said  president  judge. 
NOTE. — The  words  "and  able  to  act"  have  been  inserted. 

80.  MILEAGE  AND  EXPENSES. 

(rf)  No  additional  compensation  shall  be  received  by  said 
judges  of  the  court  of  common  pleas  for  any  service  rendered 
in  pursuance  of  this  section ;  but  they  shall  be  entitled  to  be  paid 
such  mileage  and  other  actual  expenses  as  are  provided  by  law 
for  judges  of  this  commonwealth  when  holding  court  outside  of 
the  district  for  which  they  shall  have  been  commissioned. 

81.  ORPHANS'  COURT  JUDGES  SITTING  IN  COURTS 

OF  COMMON  PLEAS  OR  CRIMINAL  COURTS;— 

POWER  TO  ACT. 

« 

SECTION  5.  (a)  In  addition  to  the  powers  now  possessed  and 
exercised  by  the  judges  of  the  separate  orphans'  courts  of  this 
commonwealth,  said  judges  shall,  when  called  upon  by  the  pres- 
ident judge  of  the  court  of  common  pleas  of  the  same  judicial 
district,  as  hereinafter  provided,  have  power  to  hear  and  deter- 
mine, when  certified  according  to  the  provisions  of  clause  (&)  of 
this  section,  all  pleas,  actions,  causes,  civil  or  criminal  issues,  and 
all  issues  and  other  matters  in  equity,  in  the  court  of  common 
pleas,  court  of  oyer  and  terminer  and  general  jail  delivery, 
and  court  of  quarter  sessions  of  the  peace,  for  said  judicial 
district,  so  fully  and  effectually,  and  to  dispose  thereof  in  the 
same  manner,  as  may  be  done  by  the  judges  of  the  court  of  com- 
mon pleas  sitting  in  said  courts. 

NOTE. — This  and  the  following  clauses  of  the  present  section  are  copied, 
with  slight  changes  in  phraseology,  from  Sections  I  to  4  of  the  Act  of 
July  19,  1913,  P.  L.  844,  6  Purd.  7036.  Section  5  is  a  general  repealer. 

The  provisions  of  the  Act  of  April  18,  1905,  P.  L.  208,  6  Purd.  7035, 
which  related  only  to  equity  proceedings,  are  incorporated  by  the  insertion 
of  the  words  "and  all  issues  and  other  matters  in  equity." 

Both  acts  are  recommended  for  repeal. 


ORPHANS'  COURT  ACT— SECTIONS  5  (&),  (O,  00-6          63 

82.  JUDGES  NOT  COMPELLED  TO  ACT. 

(b)  Nothing  in  this  section  shall  be  construed  to  make  it  com- 
pulsory upon  the  judges  of  said  orphans'  court  to  render  the 
services  aforesaid;    but  whenever  the  proper  despatch  of  busi- 
ness requires  it,  and  an  arrangement  can  be  made  with  a  judge 
of  such  orphans'  court  for  such  service,  the  president  judge  of 
the  court  of  common  pleas  of  the  same  judicial  district  may 
certify  all  matters  or  issues  to  be  heard  and  determined  by  such 
orphans'  court  judge,  specially  presiding  as  aforesaid. 

83.  WHEN    PRESIDENT   JUDGE    ABSENT    OR    DIS- 

ABLED   OTHER   JUDGES    MAY    CALL    IN    OR- 
PHANS' COURT  JUDGE. 

(c)  In  districts  having  one  or  more  additional  law  judges, 
whenever  the  president  judge  shall  be  absent  from  the  district,  or 
disabled  by  sickness,  and  occassion  shall  occur,  it  shall  be  com- 
petent for  the  additional  law  judge,  and  in  districts  having  more 
than  one  additional  law  judge,  for  the  one  oldest  in  commission, 
being  then  in  the  district  and  able  to  act,  to  arrange  for  the  serv- 
ice herein  provided  for,  and  to  make  the  necessary  certificates 
in  like  manner,  and  to  the  same  intent,  effect  and  purpose,  as  the 
same  could  be  done  by  the  said  president  judge. 

NOTE. — In  this  clause,  "shall"  has  been  substituted  for  "should"  in  line 
4,  and  "one"  for  "an"  before  "additional  law  judge"  in  line  5.  The  words 
"and  able  to  act"  have  been  inserted. 

84.  MILEAGE  AND  EXPENSES. 

(d)  No  additional  compensation  shall  be  received  by  the  said 
orphans'  court  judges  for  any  service  rendered  in  pursuance  of 
this  section;    but  they  shall  be  entitled  to  be  paid  such  mileage 
and  other  actual  expenses  as  are  provided  by  law  for  judges  of 
this  commonwealth  when  holding  court  outside  of  the  district  for 
which  they  shall  have  been  commissioned. 

85.  SEAL  OF  COURT. 

SECTION  6.  Every  orphans'  court  shall  have  a  seal  for  the 
use  of  the  said  court,  having  engraved  thereon  the  same  device 
as  is  engraved  on  the  great  seal  of  the  State,  together  with  the 
name  of  the  respective  court;  and  such  seal  may  be  renewed, 


64  ORPHANS'  COURT  ACT— SECTIONS  6-7-8  (a) 

under  the  direction  of  such  court,  as  often  as  occasion  shall  re- 
quire. 

NOTE. — This  is  a  combination  of  Section  55  of  the  Act  of  April  14,  1834, 
P.  L.  351,  3  Purd.  3361,  which,  however,  provides  that  the  seal  shall  have 
engraved  upon  it  "such  words  and  devices  as  are  inscribed  on  the  seal  now 
in  use  in  the  respective  court,"  and  Section  I  of  the  Act  of  March  6, 
1854,  P.  L.  156,  3  Purd.  3338.  Both  sections  are  recommended  for  repeal, 
the  latter  only  so  far  as  it  relates  to  the  orphans'  court 

86.  COURT  ROOMS. 

SECTION  7.  That  commissioners  of  the  several  counties  where- 
in separate  orphans'  courts  are  now  or  hereafter  shall  be  estab- 
lished shall  provide  proper  and  suitable  apartments,  as  may  be 
required  by  said  courts,  in  which  the  business  of  said  courts  shall 
be  held  and  conducted,  and  in  which  the  records  thereof  shall  be 
safely  and  securely  kept. 

NOTE. — This  is  Section  10  of  the  Act  of  May  19,  1874,  P.  L.  207,  3  Purd. 
3362,  modified  by  inserting  the  words,  "as  may  be  required  by  said  courts." 

87.  CLERK  OF  COURT,— REGISTER  OF  WILLS  TO 

BE  CLERK  IN  COUNTIES  HAVING  SEPARATE 
ORPHANS'  COURT;  OTHER  COUNTIES. 

SECTION  8  (a)  The  register  of  wills  of  each  county  in  which  a 
separate  orphans'  court  is  now  or  hereafter  shall  be  established 
shall  be  clerk  of  such  court  and  subject  to  its  directions  in  all 
matters  pertaining  to  his  office ;  and  he  may  appoint  an  assistant 
clerk  or  clerks,  but  only  with  the  consent  and  approval  of  said 
court. 

In  each  county  having  no  separate  orphans'  court,  a  clerk  of 
the  orphans'  court  shall  be  elected  and  commissioned  in  accord- 
ance with  the  existing  law. 

NOTE. — This  is  copied  from  the  first  part  of  the  Act  of  March  31,  1915, 
P.  L.  41,  6  Purd.  7034,  relating  to  counties  having  more  than  150,000  inhab- 
itants, and  the  Act  of  April  25,  1889,  P.  L,.  52,  3  Purd.  3362,  relating  to 
counties  having  less  than  that  population. 

The  other  parts  of  those  acts  relate  to  salaries  and  fees — subjects  which 
have  been  excluded  from  the  present  draft,  and  it  is  not  recommended 
that  said  acts  be  repealed. 

The  last  sentence  has  been  added  because  the  Commissioners  considered 
it  inadvisable  in  the  present  draft  to  attempt  to  deal  with  the  local  pro- 
visions of  the  Act  of  July  2,  1839,  P.  L.  559,  3  Purd.  3664  and  its  amend- 
ments. 


ORPHANS'  COURT  ACT— SECTION  8  (&)  i,  2,  3  65 

88.  DUTIES  OF  CLERK,— CUSTODY   OF  RECORDS; 

DUTIES  IN  GENERAL. 

(&)  i.  In  each  county  of  this  commonwealth,  the  clerk  of  thf 
orphans'  court  shall  have  the  custody  of  the  records  and  of  the 
seal  of  the  respective  court,  and  keep  the  same  at  the  place  of 
holding  such  court,  and  in  the  apartments  provided  by  law  foi 
that  purpose ;  and  he  shall  faithfully  perform,  under  the  direction 
of  the  court,  all  the  duties  appertaining  to  his  office. 

NOTE. — This  is  founded  on  Section  56  of  the  Act  of  April  14  1834,  P- 
L.  351,  3  Purd.  3361.  The  first  part  of  that  section,  reading,  "A  clerk  shall 
be  commissioned  for  each  of  the  said  courts,"  is  sufficiently  covered  by 
clause  (a)  supra. 

89.  DOCKETS;    RECORDS  OF  ACCOUNTS  AND  AU- 

DITOR'S REPORTS. 

2.  Said  clerks  are  hereby  authorized  and  required  to  keep,  in 
dockets  provided  for  the  purpose,  a  f uU  record  of  all  proceedings 
of  their  respective  courts,  and  place  upon  record,  in  a  fair,  legible 
hand,  or  in  typewriting,  in  a  book  or  books  to  be  provided  for 
that  purpose,  all  accounts  of  executors,  administrators,  guardians 
and  trustees,  as  well  as  all  reports  of  auditors  appointed  by  said 
courts,  respectively,  omitting  the  testimony  and  documents  accom- 
panying the  same ;  the  fees  for  this  service  to  be  one-half  of  the 
amount  now  allowed  by  law  for  the  recording  of  deeds. 

NOTE.— This  is  Section  18  of  the  Act  of  April  25,  1850,  P.  L.  572,  I  Purd. 
1126,  with  the  addition  of  the  provision  as  to  dockets,  and  of  the  words 
"trustees"  and  "or  in  typewriting." 

90.  TRANSLATIONS  OF  PAPERS  IN  OTHER  THAN 

ENGLISH  LANGUAGE. 

3.  Any  person  who  shall  offer  any  written  or  printed  instrument 
to  be  filed  in  any  orphans'  court  or  in  the  office  of  the  clerk  of 
any  orphans'  court,  which  instrument  shall  be  in  any  other  than 
the  English  language,  shall  furnish  at  his  own  expense,  to  the  clerk 
of  such  court,  a  sworn  translation  in  English  of  such  instrument 
thus  offered,  and  the  clerk  shall  attach  or  cause  to  be  attached 
such  translation  to  the  original  and  file  both  the  original  and  the 
translation  of  record  in  his  office  in  all  cases  where  filing  is  now 
or  hereafter  may  be  required  by  law,  but  in  all  cases  where  re- 
cording is  now,  or  hereafter  may  be,  required,  both  the  original 
and  the  translation  in  English  shall  be  recorded.    Such  clerk  shall 

5 


66      ORPHANS'  COURT  ACT— SECTIONS  8  (6)  3,  (O-9  (a),  (&) 

not  file  or  mark  filed,  record  or  mark  recorded,  any  written  or 
printed  instrument  in  violation  of  this  clause,  nor  shall  any  paper 
filed  or  recorded  in  violation  of  this  clause  be  notice  to  any  per- 
son in  any  legal  proceeding  whatever,  nor  be  received  or  con- 
sidered in  evidence  in  any  proceeding  at  law  or  in  equity. 

NOTE. — This  is  founded  on  Sections  i  and  2  of  the  Act  of  May  31,  1893, 
P.  L.  188,  4  Purd.  4052-3,  which  relates  to  the  register  and  recorder  and 
to  all  courts  of  record. 

91.  BILL  OF  COSTS. 

(c)  The  separate  orphans'  courts  of  this  commonwealth  may 
establish  a  bill  of  costs  to  be  chargeable  to  parties  and  the  estates 
before  them  for  settlement,  for  the  services  of  the  clerks  of  said 
courts,  respectively,  in  the  transaction  of  business  of  said  courts. 
In  counties  wherein  no  separate  orphans'  courts  have  been  or 
shall  be  established,  the  law  as  to  fees  to  be  charged  by  clerks  of 
the  orphans'  courts  shall  remain  as  heretofore. 

NOTE. — The  first  sentence  is  the  last  part  of  Section  i  of  the  Act  of 
March  18,  1875,  P-  L.  29,  3  Purd.  3370,  with  the  substitution  of  "may"  for 
"shall." 

The  second  sentence  has  been  added  because  the  Commissioners  con- 
sidered it  inadvisable  to  disturb  the  existing  system.  See  2  Purd.  1630. 

92.  JURISDICTION. 

SECTION  9.  The  jurisdiction  of  the  several  orphans'  courts, 
whether  separate  or  otherwise,  shall  extend  to  and  embrace: 

93.  GUARDIANS. 

(a)  The  appointment,  control,  removal  and  discharge  of  the 
guardians  of  minors,  and  the  settlement  of  their  accounts : 

NOTE. — This  and  most  of  the  following  clauses  of  this  section  are 
founded  upon  Section  19  of  the  Act  of  June  16,  1836,  P.  L.  792,  3  Purd. 
3362-9.  The  changes  and  additions  are  noted  under  the  particular  clauses. 

Section  19  of  the  Act  of  1836  supplied  Section  4  of  the  Act  of  March 
29,  1832,  P.  L.  190,  and  enlarged  the  jurisdiction  there  given. 

In  the  present  clause,  the  provisions  of  Section  6  of  the  Act  of  May  19, 
1874,  P.  L.  207,  3  Purd.  3369,  have  been  incorporated,  omitting,  however, 
the  reference  to  "registers'  courts." 

94.  TRUSTEES. 

(b)  The  appointment  of  trustees  for  any  persons  interested  in 
the  real  or  personal  estate  of  any  decedent,  and  the  control,  re- 


ORPHANS'  COURT  ACT— SECTION  9  (&),  (c),  (d),  (<?),  (/),  (0)  67 

moval,  discharge  and  settlement  of  the  accounts  of  trustees  so 
appointed  and  of  testamentry  trustees,  whether  the  testamentary 
trustees  be  appointed  nominatim  or  virtute  officii : 

NOTE. — This  clause  is  new,  but  is  declaratory  of  the  existing  law. 

95.  TRUSTEES  DURANTE  ABSENTIA. 

(c)  The  appointment  of  trustees  for  absent  persons,  the  con- 
trol, removal  and  discharge  of  trustees  so  appointed,  and  the 
settlement  of  their  accounts : 

NOTE. — This  clause  is  new,  and  is  introduced  to  cover  the  jurisdiction 
under  the  Act  of  April  n,  1879,  P.  L.  21,  4  Purd.  4904,  which  is  the  basis 
of  Section  60  of  the  Fiduciaries  Act.  (See  617  infra.) 

96.  EXECUTORS  AND  ADMINISTRATORS. 

(rf)  The  control,  removal  and  discharge  of  executors  and  ad- 
ministrators, deriving  their  authority  from  the  register  of  the 
respective  county,  and  the  settlement  of  their  accounts : 

97.  DISTRIBUTION  OF  DECEDENTS'  ESTATES. 

(e)  The  distribution  of  the  assets  and  surplusage  of  the  estates 
of  decedents  among  creditors  and  others  interested : 

98.  SALE   OF   REAL   ESTATE   FOR   PAYMENTS    OF 

DEBTS  OF  DECEDENT. 

(/)  The  sale  of  real  estate  of  decedents  for  payment  of  their 
debts. 

NOTE. — This  is  an  amendment  of  Clause  IV  of  Section  19  of  the  Act  of 
June  16,  1836,  3  Purd.  3366,  which  reads  "The  sale  of  real  estates  of  de- 
cedents." Other  sales  than  those  for  payment  of  debt  are  covered  by 
clauses  (g)  and  (/»)• 

99.  DISPOSITION  OF  TITLE  TO  REAL  ESTATE  TO 

RENDER    THE    SAME    FREELY    ALIENABLE, 
ETC. 

(g}  The  disposition  of  the  title  to  real  estate  of  decedents  and 
of  persons  disabled  from  dealing  therewith  in  order  to  render  the 
same  freely  alienable  and  productive  to  the  living  owners  thereof  : 

NOTE. — This  is  a  new  clause,  introduced  to  cover  the  provisions  of  the 
Price  Act. 


68  ORPHANS'  COURT  ACT— SECTION  9  (*),  (*) 

100.  PARTITION. 

(h)  The  partition  of  the  real  estate  of  decedents  among  the 
parties  entitled  thereto,  the  valuation  of  such  real  estate,  and  the 
sale  thereof  for  the  purpose  of  distribution : 

NOTE. — This  is  an  amendment  of  Clause  V  of  Section  19  of  the  Act  of 
1836,  which  reads :  "The  partition  of  the  real  estates  of  intestates  among 
the  heirs." 

101.  SPECIFIC  EXECUTION  OF  DECEDENTS'  CON- 

TRACTS AS  TO  REAL  ESTATE. 

(t)  The  specific  execution  of  contracts  made  by  decedents  to 
sell  and  convey  any  real  estate  of  which  such  decedent  shall  die 
seized,  and  of  contracts  made  by  decedents  to  purchase  any  real 
estate : 

NOTE. — This  is  Clause  VI  of  Section  19  of  the  Act  of  1836,  amended  so 
as  to  include  contracts  for  the  purchase  of  real  estate. 

A  court  of  equity  has  no  jurisdiction  to  enforce  specific  performance 
of  a  contract  made  by  a  decedent  for  the  sale  of  land  of  which  he  died 
seized. 

Jurisdiction  in  such  a  case  is  vested  in  the  orphans'  court  by  Section  9 
(*)  of  the  Orphans'  Court  Act  of  June  7,  1917,  P.  L.  372;  and  Section  18 
of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  486,  providing  the  mode  of 
procedure  by  petition  to  the  orphans'  court  also  makes  that  remedy 
exclusive. 

The  orphans'  court  formerly  had  the  same  exclusive  jurisdiction  under 
the  Act  of  April  28,  P.  L.  157. 

"Passing  to  the  demurrer  itself,  we  note  that  by  Section  9  (t)  of  the 
Orphans'  Court  Act  of  June  7,  1917,  P.  L.  372,  jurisdiction  of  that 
court  is  given  to  'embrace' — 

"  'The  specific  performance  of  contracts  made  by  decedents  to  sell  and 
convey  any  real  estate  of  which  such  decedents  shall  die  seized/  and  the 
proceedings  therefor  by  petition  to  said  court  by  the  Fiduciaries  Act  of 
1917,  Section  18  (o)  P.  L.  486,  'such  court  shall  have  power  if  the  facts 
be  sufficient  in  equity,  no  sufficient  cause  being  shown  to  the  contrary — 
to  decree  specific  performance  of  such  contract  according  to  the  true 
intent  and  meaning  thereof.' 

"By  the  jurisdiction  of  and  proceedings  in  the  orphans'  court  under  the 
Orphans'  Court  and  Fiduciaries  Acts  of  1917  cited  above,  all  controverted 
questions  raised  by  the  bill  at  bar  are  judiciable.  Therefore,  the  adequate 
remedy  thus  exists  and  its  legislative  exclusiveness  of  resort  precludes 
any  other  because  of  any  claimed  greater  convenience."  Smith,  P.  J.  in 
Wykoff  v.  Manzer,  22  Lack.  308. 

Where  decedent,  in  his  lifetime,  in  a  written  lease  gave  the  petitioner 
the  privilege  of  purchasing  the  leased  premises  at  any  time  within  one 
year  from  the  date  of  the  lease,  and  died  during  a  renewed  and  extended 


ORPHANS'  COURT  ACT-SEcTioN  9  («),  (/),  (*),  (0  69 

period  of  such  agreement  to  sell,  a  demurrer  to  a  petition  by  the  said 
vendee  was  overruled  the  court  holding  that  the  Act  of  1917  does  not 
change  the  remedy  provided  by  the  Act  of  February  24,  1834,  (P.  L.  70) 
as  superseded  by  the  Act  of  April  28,  1899,  (P.  L.  157).  Owen's  Estate,  28 
Dist.  667. 

102.  LEGACIES. 

(/)  Proceedings  for  the  collection  or  enforcement  of  payment 
or  delivery  of  all  legacies,  whether  pecuniary,  specific  or  other- 
wise, and  whether  charged  on  real  estate  or  not : 

NOTE. — This  is  Clause  VII  of  Section  19  of  the  Act  of  1836,  extended 
so  as  to  cover  specific  legacies  and  legacies  charged  on  land. 

This  jurisdiction  is  exclusively  in  the  orphans'  court,  and  the  parties 
cannot,  by  agreement^  in  the  form  of  a  case  stated,  raise  an  issue  in  the 
common  pleas,  confer  jurisdiction  on  the  latter  court  to  determine  who 
is  entitled  to  a  legacy  under  the  will  of  a  decedent.  Stapler  v.  Atkinson, 
27  Dist.  995. 

103.  DISCHARGE  OF  LIENS  AND  CHARGES. 

(&)  Proceedings  for  the  discharge  of  real  estate  of  decedents 
from  the  lien  of  debts  of  decedents,  and  for  the  discharge  of  real 
and  personal  estate  from  the  liens  of  legacies,  annuities,  dower, 
recognizances  and  other  charges. 

NOTE. — This  is  a  new  clause,  added  to  cover  branches  of  jurisdiction 
under  the  new  Fiducaries  Act. 

104.  WHERE  FIDUCIARIES  ARE  POSSESSED  OF  OR 

ACCOUNTABLE    FOR    ESTATE    OF    DECE- 
DENT. 

(/)  All  cases  within  their  respective  counties,  wherein  exec- 
utors, administrators,  guardians  or  trustees  may  be  possessed  of 
or  are  in  any  way  accountable  for  any  real  or  personal  estate  of 
a  decedent. 

NOTE. — This  is  Clause  VIII  of  Section  19  of  the  Acts  of  1836. 

Under  this  section  it  was  held  that  the  orphans'  court  had  jurisdiction 
to  order  the  issue  of  a  new  certificate  of  stock,  in  accordance  with  Section 
17,  of  the  Uniform  Stock  Transfer  Act  of  May  5,  1911,  (P.  L.  126)  where 
the  fiduciary,  in  this  case  an  executor,  accountable  to  that  court,  showed 
title  to  the  stock  in  the  fiduciary  estate,  the  loss  or  destruction  of  the 
certificate  and  the  impossibility  of  making  a  complete  distribution  of  the 
assets  of  the  estate  for  lack  of  a  muniment  of  title.  The  court  per  Hen- 
derson, J.,  said:  "What  are  the  controlling  principles  in  this  matter? 
We  have  a  fiduciary  accountable  to  this  court;  an  asset  the  title  to  which 


70         ORPHANS'  COURT  ACT— SECTIONS  9  (/),  (m),  (n)-io 

is  in  the  fiducial  estate;  not  even  a  color  of  dispute  as  to  the  title  and 
the  impossibility  of  making  a  complete  distribution  of  the  assets  of  this 
estate  for  lack  of  a  muniment  of  title;  hence  we  conclude  that  this  court 
has  jurisdiction."  Hagerman's  Estate,  47  Pa.  C.  C.  498;  28  Dist.  384. 

The  orphans'  court,  however,  has  no  jurisdiction  to  determine  disputed 
questions  of  title.  While  it  cannot  be  doubted  that  under  this  section,  as 
under  the  former  Act,  the  orphans'  court  has  jurisdiction  over  all  of  the 
property  of  an  estate  and  can  compel  the  appearance  by  citation  of  those 
persons  who  have  possession  of  any  part  thereof,  since  such  persons  are 
constructive  trustees  and  accountable  therefor  and  may  be  compelled  to 
appear  on  citation  to  deliver  the  trust  property  to  the  executor,  yet  this 
principle  is  applicable  only  where  there  is  no  contest  as  to  the  title  to  the 
property.  Wyant's  Estate,  33  York  208. 

105.  APPEALS     AND     PROCEEDINGS     CERTIFIED 

FROM  REGISTERS  OF  WILLS. 

(m)  All  appeals  from  the  orders  or  decrees  of  the  register  of 
wills  of  their  respective  counties,  and  all  proceedings  removed 
from  said  registers  by  certification. 
NOTE. — This  clause  is  declaratory  of  the  existing  law. 

106.  INCIDENTAL  AND  ADDITIONAL  POWERS. 

(n)  The  exercise  of  all  other  powers  needful  to  the  doing  of 
anything  which  is  or  may  be  hereafter  required  or  permitted  to 
be  done  in  said  court,  whether  incidental  to  the  powers  herein- 
before enumerated  or  in  addition  thereto. 

And  such  jurisdiction  shall  be  exercised  under  the  limitations, 
and  in  the  manner  provided  by  law. 

NOTE. — The  first  sentence  of  the  clause  is  new,  and  is  intended  to  re- 
move any  doubt  as  to  the  interpretation  of  this  section  when  compared 
with  the  language  of  the  other  acts  relating  to  the  specific  branches  of  the 
jurisdiction,  and  to  obviate  the  necessity  of  amending  this  section  in  case 
of  any  future  grant  of  new  jurisdiction  to  the  court. 

The  second  sentence  is  the  conclusion  of  Section  19  of  the  Act  of  1836. 

107.  RULES  OF  COURT. 

SECTION  10.  The  several  orphans'  courts  shall  have  full  power 
and  authority  to  make,  from  time  to  time,  such  rules  for  regulat- 
ing the  practice  thereof,  respectively,  and  for  expediting  the  de- 
termination of  suits,  causes  and  proceedings  therein,  as  in  their 
discretion  they  shall  judge  necessary  or  proper  for  the  exercise 
of  the  powers  hereby  conferred  or  which  may  hereafter  be  con- 
ferred :  Provided,  That  such  rules  shall  not  be  inconsistent  with 
the  constitution  and  laws  of  this  commonwealth. 


ORPHANS'  COURT  ACT— SECTIONS  10-11-12  (a)  71 

NOTE. — This  is  a  combination  of  part  of  Section  58  of  the  Act  of  March 
29,  1832,  P.  L.  213,  Section  21  of  the  Act  of  June  16,  1836,  P.  L.  792,  and 
Section  9  of  the  Act  of  May  19,  1874,  P.  L.  207,  all  of  which  appear  in  3 
Purd.  3370. 

Under  this  section  it  has  been  held  that  the  orphans'  court  has  author- 
ity to  make,  inter  alia,  the  matter  of  filing  accounts  the  subject  of  a  rule 
of  court.  Gummey,  J.,  in  Hayden's  Estate,  28  Dist.  39. 

108.  TIME  OF  HOLDING  COURT. 

SECTION  n.  The  orphans'  courts  of  every  county  of  this 
commonwealth  shall  be  held  during  every  term  of  the  court  of 
common  pleas  of  the  respective  county  and  at  such  other  times 
and  as  often  as  the  judges  thereof  shall  think  necessary  or  proper. 

NOTE.— This  is  intended  to  take  the  place  of  Section  57  of  the  Act  of 
April  14,  1834,  P.  L.  352,  3  Purd.  3361,  which  reads  as  follows: — 

"The  orphans'  courts  of  the  city  and  county  of  Philadelphia  shall  be 
held  during  every  term  of  the  court  of  common  pleas  of  the  said  city 
and  county,  at  such  times  and  as  often  as  the  judges  thereof  shall  think 
necessary  or  proper;  and  the  orphans'  court  of  every  other  county  of 
this  commonwealth  shall  be  held  during  the  first  week  of  each  term  of 
the  court  of  common  pleas  of  the  respective  county,  and  at  such  other 
times  as  the  judges  thereof  shall  think  necessary  or  proper." 

Section  4  of  the  Act  of  May  19,  1874,  P.  L.  207,  3  Purd.  3361,  provides 
that,  in  Philadelphia,  Allegheny  and  Luzerne  Counties,  the  orphans' 
courts  shall  be  held  during  every  term  of  the  courts  of  common  pleas  and 
at  such  other  times  and  as  often  as  the  judges  shall  think  necessary  or 
proper. 

109.  NOTICE  TO  PARTIES.— IN   GENERAL. 

SECTION  12.  (a)  In  all  cases  in  which  heirs,  legatees  or  distrib- 
utees are  interested,  and  in  consequence  of  such  interest,  notice 
shall  be  required  to  be  given  to  them  or  any  of  them,  of  any  pro- 
ceedings in  the  orphans'  court,  such  notice  shall,  except  in  the 
case  of  the  accounts  of  executors  or  administrators,  and  in  other 
cases  specially  provided  for,  be  given  in  such  manner,  personally, 
by  registered  mail,  or  by  publication,  as  shall  appear  to  the  court 
to  be  reasonable  and  proper,  according  to  general  rules  adopted 
by  the  court,  or  special  orders  made  by  the  court  in  particular 
cases. 

NOTE. — This  is  founded  on  Section  52  of  the  Act  of  March  29,  1832, 
P.  L.  207,  3  Purd.  3372,  which,  however,  contains  the  following  provisions 
as  to  the  method  of  giving  notice :  "To  all  persons  resident  within  the 
county  in  which  the  court  has  jurisdiction,  notice  shall  be  given  personally, 
or  by  writing  left  at  their  place  of  abode;  to  all  persons  resident  without 


72  ORPHANS'  COURT  ACT— SECTIONS  12  (a),  (6)-i3-i4 

the  county,  personal  notice  as  aforesaid  shall  be  given,  if  in  the  opinion 
of  the  court  such  notice  be  reasonably  practicable ;  if  otherwise,  by  pub- 
lication in  such  one  or  more  newspapers  as,  in  the  opinion  of  the  court, 
will  be  most  likely  to  meet  the  eye  of  those  entitled  to  notice." 

The  change  has  been  made  in  pursuance  of  the  general  view  of  the 
Commissioners  that,  except  in  cases  of  sales  of  real  estate,  the  details,  as 
to  the  method  of  giving  notice  should  be  regulated  by  general  rule  of 
court  or  special  order,  rather  than  by  inflexible  statutory  provisions. 

Section  53  of  the  Act  of  March  29,  1832,  3  Purd.  3372,  relating  to  the 
method  of  giving  notices  where  minors  are  interested,  is  embodied,  with 
changes,  in  Section  59  (fc)  of  the  new  Fiduciaries  Act,  (see  616  infra). 

1 10.    PUBLICATION. 

(b)  The  judges  of  the  respective  orphans'  courts  shall  have 
power,  and  are  hereby  authorized  to  make  such  rules  and  regu- 
lations as  they  may  deem  proper  for  the  publication  of  advertise- 
ments of  notices  to  parties  in  all  cases  within  their  jurisdiction' 
Provided,  That  said  court  shall  have  supervision  of  and  regulate 
the  cost  of  such  publication  in  all  cases,  as  well  by  special  order 
in  particular  cases,  as  by  general  rules. 

NOTE. — This  is  part  of  Section  i  of  the  Act  of  March  18,  1875,  P.  L.  29, 
3  Purd.  3370.  The  section  also  contains  provisions  as  to  notices  of  audits, 
of  sales  of  real  estate,  and  in  partition  proceedings,  which  are  covered  in 
their  appropriate  places  in  the  proposed  new  acts,  and  a  provision  for  the 
establishment  of  a  fee  bill,  which  is  covered  in  Section  8  (c)  of  the  present 
draft.  (See  91  supra.) 

in.    ATTESTATION  OF  PROCESS,  ETC. 

SECTION  13.  All  process,  subpoenas,  certificates,  copies  of  rec- 
ords and  other  documents,  which  shall  be  issued  out  of  any  of 
said  courts,  shall  be  attested  in  the  name  of  the  president  judge 
thereof  alone. 

NOTE.— This  is  Section  5  of  the  Act  of  May  24,  1878,  P.  L.  132,  3  Purd. 
3370. 

112.    RETURN-DAYS  OF  PROCESS. 

SECTION  14.  The  several  orphans'  courts  shall  have  power  to 
fix  the  return-days  of  all  process  issuing  out  of  the  respective 
courts,  whenever  such  return-days  are  not  otherwise  provided  for 
by  law. 

NOTE.— This  is  part  of  Section  58  of  the  Act  of  March  29,  1832,  P.  L,. 
213,  3  Purd.  3370,  which  was  new  in  that  act. 


ORPHANS'  COURT  ACT— SECTIONS  15-16-17  (o)  73 

113.  PROCEEDINGS  IN  VACATION. 

SECTION  15.  The  several  orphans'  courts  of  this  common- 
wealth shall  have  full  power  in  vacation  to  administer  the  busi- 
ness of  the  court  and  to  issue  process;  Provided,  That  said 
process  shall  be  made  returnable  only  in  the  county  where  the 
proceeding  is  pending. 

NOTE. — This  is  founded  on  Section  i  of  the  Act  of  May  7,  1889,  P.  L. 
102,  3  Purd.  3371,  which  applies  to  "the  law  judges  of  the  several  courts 
of  the  commonwealth."  "Administer  the  business  of  the  court  and  issue 
process"  has  been  substituted  for  "grant  citations  and  rules  to  show 
cause,"  etc.  In  the  proviso,  the  words  "at  a  term  of  court"  have  been 
omitted  after  "returnable." 

Under  the  authority  of  this  section,  the  court  may  grant  in  chambers 
a  petition  for  leave  to  pay  a  legacy  of  $100  to  the  father  of  a  minor  as 
its  natural  guardian.  Storer's  Estate,  28  Dist.  215. 

114.  INJUNCTIONS. 

SECTION  16.  The  said  courts  shall  have  power  to  prevent,  by 
orders  in  the  nature  of  writs  of  injunction,  acts  contrary  to  law 
or  equity,  prejudicial  to  property  over  which  they  shall  have 
jurisdiction:  Provided,  That  security  may  be  required  as  in 
other  cases  of  writs  of  injunction. 

NOTE. — This  is  Section  7  of  the  Act  of  May  19,  1874,  P-  L.  207,  3  Purd. 
3370,  except  that  the  proviso  to  that  section  reads :  "That  security  shall 
be  given,  as  is  now  required  by  law  in  cases  of  writs  of  injunction." 

115.  PROCEEDINGS     TO     OBTAIN     APPEARANCE; 

CITATIONS,  PROCEDURE  IN  DEFAULT  OF 
APPEARANCE. 

SECTION  17.  The  manner  of  proceeding  in  the  orphans'  court, 
to  obtain  the  appearance  of  a  person  amenable  to  its  jurisdiction, 
and  the  procedure  in  default  of  appearance,  shall  be  as  follows : 

116.  AWARDING  CITATION. 

(a)  On  petition  to  the  court  of  any  person  interested,  whether 
such  interest  be  immediate  or  remote,  setting  forth  facts  necessary 
to  give  the  court  jurisdiction,  the  specific  cause  of  complaint,  and 
the  relief  desired,  and  supported  by  oath  or  affirmation,  the 
orphans'  court,  or  any  judge  thereof,  may  award  a  citation 
returnable  at  a  day  certain,  not  less  than  ten  days  after  the 
issuing  thereof. 


74       ORPHANS'  COURT  ACT— SECTION  17  (a),  (&),  (c),  (<f) 

NOTE. — This  and  the  following  clauses  of  this  section,  except  where 
otherwise  indicated  in  the  notes,  are  founded  on  Section  57  of  the  Act 
of  March  29,  1832,  P.  L.  207,  3  Purd.  3372-77- 

In  the  present  clause,  the  words  "in  vacation"  are  omitted  after 
"judge  thereof." 

See  forms  27,  57. 

One  who  is  simply  a  surety  for  the  administrator  of  an  estate  cannot 
be  said  to  be  interested  in  the  estate  of  which  his  principal  is  the 
administrator,  although  the  administrator  fails  to  account  for  and  pay 
the  trust  property  and  funds  which  came  into  his  hands  and  thereby  the 
surety  becomes  a  debtor  of  the  estate,  and  therefore  under  the  above 
section  such  surety  has  no  standing  to  require  his  principal,  who  is  the 
administrator,  to  pay  adjudicated  claims.  Seidman's  Estate,  20  Lack.  176, 
citing  Moore's  Estate,  19  Dist.  109. 

117.  BY  WHOM  TO  BE  SERVED. 

(&)  Such  citation  may  be  served  by  the  party  obtaining  the 
same,  or  by  any  authorized  agent,  or,  if  required  by  the  party, 
it  shall  be  served  by  the  sheriff  or  coroner,  as  the  case  may 
require,  of  the  proper  county. 

118.  MANNER  OF  SERVICE. 

(c)  The  manner  of  service  shall  be  by  giving  a  copy  thereof  to 
the  respondent  personally,  or  by  leaving  such  copy  with  some 
adult  member  of  his  family,  at  his  place  of  residence. 

NOTE. — In  this,  as  in  several  subsequent  clauses,  "respondent"  has  been 
substituted  for  "defendant."  The  word  "adult"  has  been  inserted,  and 
"residence"  substituted  for  "abode." 

119.  PLACE  OF  SERVICE. 

(d)  Such  service  may  be  made  anywhere  within  this  common- 
wealth;   and  if   such  party  resides  outside  the  commonwealth 
and  his  place  of  residence  is  known  and  the  proceeding  concerns 
property  situate  within  the  commonwealth,  the  court  may,  in 
its  discretion,  authorize  service  to  be  made  on  such  party  per- 
sonally wherever  found,  or  by  registered  mail,  or  may  direct 
notice  to  be  given  by  publication  in  such  manner  as  shall  appear 
to  the  court  to  be  reasonable  and  proper,  according  to  general 
rules  adopted  by  the  court,  or  special  orders  made  by  the  court 
in  particular  cases. 

NOTE. — This  is  a  new  clause,  intended  to  make  citations  operative 
throughout  the  state,  and  to  provide  for  service  outside  the  state  in  cases 
where  the  court  has  jurisdiction;  Wallace  v.  United  Electric  Company, 
2ii  Pa.  473;  Coleman's  Appeal,  75  Pa.  441. 


ORPHANS'  COURT  ACT— SECTION   17  (*),   (/),   (0),   (h)       75 

120.  SERVICE  ON  SURETIES. 

(e)  If  the  respondent  be  not  found,  and  have  no  known  resi- 
dence within  the  county,  such  citation  may  be  served,  in  like 
manner,  upon  the  person  or  persons  who  may  be  the  surety  or 
sureties  of  such  party,  in  any  bond  or  recognizance  given  by  him 
for  the  performance  of  any  trust  or  duty  in  respect  to  which 
such  citation  may  have  issued. 

NOTE. — This  is  Clause  IV  of  Section  57  of  the  Act  of  March  29,  1832, 
3  Purd.  3374,  the  only  changes  being  to  substitute  "respondent"  for 
"defendant"  in  the  first  line,  and  "residence"  for  "dwelling  place"  in  the 
second  line. 

The  method  of  service  here  provided  for  does  not  meet  the  case  of  a 
respondent  who  has  given  no  bond  and  who  resides  in  or  has  removed 
to  another  state.  Such  a  case  is  intended  to  be  covered  by  the  last 
preceding  clause. 

121.  RETURN  OF  SERVICE. 

(/)  The  return  to  a  citation,  if  made  by  the  party  on  whose 
petition  it  issued,  or  his  agent  as  aforesaid,  shall  be  on  oath  or 
affirmation ;  and  in  all  cases  of  service  the  return  shall  state  how 
such  citation  was  served. 

122.  ALIAS  AND  PLURIES  CITATIONS. 

(#)  If  the  party  to  be  cited  cannot  be  found,  and  has  no  known 
residence,  and  there  is  no  surety  on  whom  service  of  the  citation 
can  be  made  as  aforesaid,  and  the  facts  shall  be  so  stated  in  the 
return  on  oath  or  affirmation,  by  the  party  complaining,  or  by 
some  one  competent  to  make  affidavit  in  that  behalf,  the  orphans' 
court  may  award  another  citation  or  pluries  citations,  returnable 
in  like  manner  with  the  first. 

NOTE. — This  is  Clause  VI  of  Section  57  of  the  Act  of  1832,  except  that 
the  words  "dwelling  place  within  this  commonwealth"  are  omitted  and 
"residence"  substituted,  the  case  of  a  party  having  a  known  residence 
outside  the  state  having  been  covered  by  clause  (d)  of  this  section,  and 
that  the  words  "or  pluries  citations"  have  been  inserted. 

123.  ORDER    OF    PUBLICATION    ON    AWARD    OF 
ALIAS  OR  PLURIES  CITATIONS. 

(h)  At  the  time  of  awarding  such  second  or  further  citation, 
the  court  may  make  an  order  for  publication  of  the  same,  in 
such  place  or  places,  and  for  such  length  of  time,  as  the  court, 
having  regard  to  the  supposed  place  of  residence  of  the  respond- 
ent, and  other  circumstances,  shall  direct. 


76      ORPHANS'  COURT  ACT— SECTIONS  17  (*),  (*)  i,  2-18  (o) 

NOTE.— This  is  Clause  VII  of  Section  57  of  the  Act  of  1832,  inserting 
"or  further"  in  line  I,  omitting,  after  "the  same,"  the  words  "in  two  or 
more  newspapers,  to  be  designated  by  the  court,"  and  changing  "de- 
fendant" to  "respondent"  in  line  5. 

124.  DEFAULT   OF   APPEARANCE,— POWER  -OF 

COURT  TO  PROCEED. 

(»)  I.  At  the  time  appointed  for  the  appearance  of  the  re- 
spondent, should  he  not  appear,  according  to  the  requisition  of 
the  citation,  and  if  due  proof  be  made  of  the  service  thereof,  or, 
when  service  cannot  be  made,  of  the  publication  thereof,  as  here- 
inbefore prescribed,  the  court  may,  with  or  without  another 
citation,  as  justice  may  require,  proceed  to  make  such  order  or 
decree  in  respect  to  the  subject  matter  as  may  be  just  and 
necessary. 

125.  METHOD  OF  PROCEEDING. 

2.  It  shall  be  lawful  for  the  court,  on  such  proof,  to  order  that 
the  petition  of  the  complainant  be  taken  as  confessed,  and,  in 
cases  where  there  is  personal  service,  to  grant  relief  according 
to  the  prayer  thereof.  When  there  is  no  personal  service  tht 
court  shall,  and  when  there  is  personal  service  the  court 
may,  in  its  discretion,  hear  testimony  in  support  of  the  allega- 
tions of  the  petition,  or  direct  a  reference  to  a  master  or  au- 
ditor to  take  proof  of  the  facts  and  circumstances  set  forth  in 
the  petition,  and  to  report  thereon ;  and  also  to  report  an  account 
against  such  respondent,  if  necessary.  On  the  report  of  such 
master  or  auditor,  the  court  shall  make  such  order  or  decree  as 
may  be  just  and  necessary. 

NOTE. — This  is  a  combination  of  clauses  IX  and  X  of  Section  57  of 
the  Act  of  1832,  3  Purd.  3374-5,  modified  so  as  to  make  it  discretionary 
with  the  court  to  enter  a  decree  without  testimony,  to  hear  testimony 
itself,  or  to  appoint  a  master.  Clause  IX  as  it  now  stands  provides  only 
for  the  appointment  of  an  auditor. 

Under  the  existing  law,  such  a  decree  cannot  be  entered,  even  where 
there  is  personal  service,  without  hearing  witnesses:  Shilling's  Appeal, 
i  Pa.  90. 

126.  PROCEEDINGS  TO  COMPEL  OBEDIENCE  TO 

ORDERS  AND  DECREES. 

SECTION  18.  (a)  Compliance  with  an  order  or  decree  of  the 
court  may  be  enforced : 


ORPHANS'  COURT  ACT— SECTION  18  (a),  i,  2,  3,  4  77 

127.  ATTACHMENT  OF  THE  PERSON. 

1.  By  attachment  of  the  person. 

NOTE. — This  and  Clauses  2  and  3  are  derived  from  Clause  XI  of  Section 
57  of  the  Act  of  1832,  with  the  addition  of  the  words  "of  the  person" 
after  "attachment,"  and  "of  real  or  personal  property"  after  "sequestra- 
tion," and  the  omission,  at  the  end,  of  the  words  "in  vacation." 

Section  8  of  the  Act  of  March  27,  1713,  i  Sm.  L.  84,  3  Purd.  3375, 
which  has  been  held  to  be  still  in  force :  Ex  parte  Batdorf ,  13  W.  N.  C. 
417,  provides :  "If  any  person  or  persons,  being  duly  summoned  to  appear 
in  any  of  the  said  orphans'  courts,  ten  days  before  the  time  appointed 
for  their  appearance,  shall  make  default,  the  justices  may  send  their 
attachments  for  contempts,  and  may  force  obedience  to  their  warrants, 
sentences  and  orders,  concerning  any  matter  or  thing  cognizable  in  the 
same  courts,  by  imprisonment  of  body,  or  sequestration  of  land  or  goods, 
as  fully  as  any  court  of  equity  may  or  can  do." 

It  is  recommended  that  this  section  be  repealed  as  covered  by  the  present 
clause. 

128.  SEQUESTRATION. 

2.  By  sequestration  of  real  or  personal  property. 

129.  FIERI  FACIAS. 

3.  In  case  of  a  decree  for  the  payment  of  money,  against  a 
party  who  has  appeared,  the  complainant  may  have  a  writ  of 
execution  in  the  nature  of  a  writ  of  fieri  facias  against  personal 
property  only,  which  writ  may  be  allowed  by  the  court,  or  by 
any  judge  thereof. 

NOTE. — This  clause  has  been  modified  by  inserting  the  words  "against 
personal  property  only."  See  the  note  to  paragraph  5,  infra. 

130.  ATTACHMENT  EXECUTION. 

4.  Whenever  any  person  against  whom  a  decree  for  the  pay- 
ment of  money  has  been  made  by  any  orphans'  court  is  pos- 
sessed of  or  entitled  to  any  stock,  deposits  or  debts  due  him,  or 
to  any  legacy  or  interest  in  the  estate  of  a  decedent,  the  same 
may  be  levied  on  or  attached  in  satisfaction  of  such  decree,  by 
the  same  process  and  in  the  same  manner  as  is  now  or  may  here- 
after be  provided  by  law  in  the  case  of  judgments  of  any  court 
of  common  pleas.     A  writ  of  attachment  for  said  purpose  may 
be  allowed  by   said  orphans'   court,  or  any  judge  thereof,  as 
writs  of  fieri  facias  in  said  court  are  allowed,  and  may  be  served 
out  of  the  county  in  which  the  same  may  be  issued;   but  service 
on  the  party  against  whom  such  decree  was  made  shall  not  be 
required,  if  he  be  not  found  in  said  county. 


78         ORPHANS'  COURT  ACT— SECTION  18  (a)  4,  5,  (&),  i,  2 

NOTE.— This  is  founded  on  Section  I  of  the  Act  of  March  27,  1873, 
P.  L.  49,  3  Purd.  3378.  That  section  refers  to  the  Acts  of  June  16,  1836, 
P.  L.  767  (see  32-8)  and  April  13,  1843,  P-  L.  235,  Section  10.  As  such  a 
reference  cannot  constitutionally  be  made  in  the  present  act,  it  is  recom- 
mended that  the  Act  of  1873  be  not  repealed. 

.131.    TESTATUM  FI.  FA. 

5.  Writs  of  testatum  fieri  facias  may  be  issued  out  of  any 
orphans'  court,  in  the  same  manner  that  writs  of  execution  in 
the  nature  of  writs  of  fieri  facias  are  allowed  by  this  act;  and 
the  sheriff,  or  other  officer  to  whom  any  such  writ  is  directed, 
i  hall  proceed  to  levy  and  sell  the  personal  property  of  the  person 
or  persons  against  whom  the  same  shall  be  issued,  in  the  same 
manner  in  all  respects,  as  if  such  writ  had  issued  out  of  a  court 
of  common  pleas. 

NOTE. — This  is  part  of  Section  2  of  the  Act  of  April  21,  1846,  P.  L.  430, 
3  Purd.  3377,  eliminating  all  references  to  the  writ  of  vend.  ex.  and  to 
real  property,  pursuant  to  the  conclusion  of  the  Commissioners  that 
executions  against  real  property  should  issue  from  the  common  pleas 
only.  See  paragraph  3,  supra,  cause  (e)  infra,  and  Section  51  of  the 
Fiduciaries'  Act.  This,  it  seems  to  the  Commissioners,  is  the  logical 
and  convenient  arrangement,  since,  as  pointed  out  in  Weyand's  Appeal, 
62  Pa.  198,  202,  a  decree  of  the  orphans'  court  is,  of  itself,  no  lien  on 
real  estate,  and  it  is  anomalous  that  a  vend.  ex.  should  issue  on  a  judg- 
ment which  has  no  lien. 

Under  Section  51  of  the  Fiduciaries'  Act  (see  561-2  infra)  and  under 
clause  (e)  of  the  present  section,  a  lien  on  real  estate  may  be  acquired 
by  filing  a  transcript  in  the  common  pleas,  where  the  judgment  will  be 
indexed,  a  matter  for  which  there  is  no  provision  in  the  orphans'  court; 
and  it  is  proper  that  the  execution  against  real  estate  should  issue  from 
the  court  where  the  lien  is  acquired.  In  line  3,  "allowed  by  this  Act"  is 
substituted  for  "allowed  by  the  57th  section"  of  the  Act  of  1832.  The 
remainder  of  that  section  validated  prior  proceedings. 

132.  PROCEDURE   ON   ATTACHMENT   OR   SEQUES- 

TRATION,—DIRECTION  OF  WRITS. 

(b)  i.  Writs  of  attachment  of  the  person  and  sequestration 
shall  be  directed  to  and  executed  by  the  sheriff  or  coroner,  as  the 
case  may  require,  of  the  proper  county. 

NOTE. — This  and  the  following  paragraphs  of  this  clause,  except  where 
otherwise  indicated,  are  copied  from  the  clauses  of  Section  57  of  the 
Act  of  1832. 

133.  ISSUANCE  OF  PROCESS  TO  OTHER  COUNTIES. 

2.  When  any  executor,  administrator,  guardian  or  trustee  shall 
reside  or  move  out  of  the  county  in  which  his  appointment  shall 


ORPHANS'  COURT  ACT— SECTION  18  (6)  2,  3,  4,  5  79 

have  taken  place,  or  shall  not  possess  real  or  personal  estate  in 
such  county,  sufficient  to  satisfy  any  decree  or  order  of  the 
orphans'  court  of  such  county,  it  shall  be  lawful  for  the  or- 
phans' court  of  such  county  to  issue  process  to  the  county  in 
which  such  executor,  administrator,  guardian  or  trustee  may  be, 
or  in  which  he  may  have  any  real  or  personal  estate,  amenable  to 
such  process ;  and  such  process  shall  be  executed  by  the  sheriff 
or  coroner,  as  the  case  may  require,  of  the  county  in  which  such 
executor,  administrator,  guardian  or  trustee  may  be,  or  may 
possess  real  or  personal  estate  as  aforesaid. 

NOTE.— This  is  Clause  XXV  of  Section  57  of  the  Act  of  1832,  extended 
so  as  to  include  trustees. 

134.  FORM  OF  WRIT  OF  SEQUESTRATION. 

3.  Writs  of  sequestration  shall  be  in  the  following  form : 
The  Commonwealth  of  Pennsylvania :    To  the  sheriff  of  the 

County  of  ,  greeting:   Whereas,  A.  B.  (here  set  out 

the  decree,  or  so  much  thereof  as  is  material  to  explain  the  duty 
to  be  performed).  Therefore  we  command  you,  that  you  do,  at 
proper  and  convenient  hours  in  the  day-time,  go  to  and  enter 
upon  all  the  messuages,  lands,  tenements  and  real  estates  of  the 
said  A.  B.,  and  that  you  do  collect,  take  and  get  into  your  hands, 
not  only  the  rents,  issues  and  profits  of  all  his  said  real  estates, 
but  also  all  his  goods,  chattels  and  personal  estate  and  detain 
and  keep  the  same  under  sequestration  in  your  hands;  and  also 
that  you  attach  all  stocks  held  by  him  in  incorporated  companies, 
and  keep  the  same  under  attachment,  until  our  said  orphans' 
court  shall  make  other  order  to  the  contrary;  and  you  are  to 
return  with  this  writ  an  inventory  or  schedule  of  the  property 
you  have  sequestered  or  attached,  and  a  certificate  under  your 
hand  of  the  manner  in  which  you  shall  have  executed  this  writ, 
to  our  said  court,  on  the  day  of 

next.    Witness,  etc. 

135.  SEQUESTRATION  NOT  TO  ABATE  ON  DEATH 

OF  PARTY. 

4.  A  sequestration  shall  not  abate  by  the  death  of  the  com- 
plainant or  respondent. 

136.  FILING  COPY  OF  WRIT  OF  SEQUESTRATION 

IN  PROTHONOTARY'S  OFFICE. 

5.  It  shall  be  the  duty  of  the  sheriff  or  the  coroner,  as  the  case 
may  be,  immediately  after  receiving  any  such  writ  of  sequestra- 


80  ORPHANS'  COURT  ACT— SECTION  18  (&)  5,  6,  7 

tion,  to  file  a  copy  thereof  in  the  office  of  the  prothonotary  of  the 
court  of  common  pleas  of  the  same  county,  who  shall,  forth- 
with, enter  the  substance  thereof  on  his  docket,  with  the  names 
of  the  parties,  and  index  the  same  in  the  judgment  index;  and 
the  entry  thereof  shall  thenceforward  operate  to  charge  the  real 
estate  of  the  respondent,  according  to  the  form  and  effect  of  such 
writ,  and  shall  bind  the  same  in  the  hands  of  all  purchasers  and 
mortgagees,  subsequently  to  such  entry,  without  other  notice: 
Provided,  That  if  such  sequestration  shall  be  dissolved  by  the 
order  of  the  orphans'  court,  the  respondent,  or  any  person 
interested  in  such  real  estate,  may  have  a  certificate  of  the  same 
from  the  clerk  of  the  said  court,  which  it  shall  be  the  duty  of 
such  clerk  to  furnish,  on  application,  and  which,  being  entered 
on  the  docket  of  said  court  of  common  pleas,  shall  have  the 
effect  of  a  satisfaction  of  such  lien. 

NOTE.— This  is  Clause  XV  of  Section  57  of  the  Act  of  1832,  altered  by 
substituting  "respondent"  for  "defendant,"  by  inserting  in  the  next  to 
the  last  line  the  words  "of  said  Court  of  Common  Pleas,"  and  by  adding 
the  provision  for  indexing  in  the  judgment  index. 

137.  ISSUANCE  OF  ATTACHMENT  OR  SEQUESTRA- 

TION WHERE  PARTY  ABSCONDS. 

6.  When  proof  shall  be  made,  on  oath  or  affirmation,  to  the 
satisfaction  of  the  court,  or  to  any  judge  thereof,  at  the  time 
of  filing  the  petition  as  aforesaid,  that  the  respondent  has  ab- 
sconded or  is  about  to  abscond  or  depart  from  his  usual  place  of 
abode,  to  the  prejudice  of  the  complainant,  it  shall  be  lawful  for 
the  court,  or  for  such  judge,  to  allow  the  issuing  of  a  writ  of 
attachment  of  the  person,  or  a  writ  of  sequestration,  or  both,  in 
the  first  instance,  against  such  respondent;    and  on  the  return 
thereof,  the  like  proceedings  may  be  had,  as  are  authorized  on 
the  return  of  a  citation. 

NOTE.— This  is  Clause  XVII  of  Section  57  of  the  Act  of  1832.  The 
following  changes  have  been  made:  In  line  2,  the  words  "if  in  session" 
have  been  omitted  after  "court,"  and  "in  vacation"  after  "thereof."  In 
line  4  and  line  9  "respondent"  has  been  substituted  for  "defendant." 

138.  DISSOLUTION  OF  ATTACHMENT  OR  SEQUES- 

TRATION. 

7.  If  such  attachment  of  the  person  or  sequestration  issued 
in  the  first  instance  be  executed,  the  court,  or  any  judge  thereof, 
may  dissolve  the  same,  on  the  respondent  giving  security  to  the 
satisfaction  of  the  court,  or  of  such  judge,  to  appear  on  a  day 


ORPHANS'  COURT  ACT— SECTION  18  (&)  7,  8,  9  81 

certain  to  answer  to  the  petition,  and  to  abide  the  orders  and 
decrees  of  the  court  in  the  premises. 

NOTE.— This  is  Clause  XVIII  of  Section  57  of  the  Act  of  1832,  omitting 
"in  vacation"  in  line  2,  and  changing  "defendant"  to  ''respondent"  in  line  3. 

139.  DISCHARGE  OF  PERSONS  ATTACHED  AS  FOR 

CONTEMPT. 

8.  Any  person  attached  as  for  contempt  in  refusing  to  obey 
an  order  or  decree  of  the  orphans'  court,  whether  for  the  pay- 
ment of  money  or  in  any  other  case,  may  be  discharged  from 
custody  by  said  court  on  his  complying  with  the  order  or  decree 
of  the  court,  or  paying  the  money  for  which  such  order  or  decree 
has  been  made,  or  upon  his  purging  himself  of  contempt  to  the 
satisfaction  of  the  court  by  whose  order  he  was  attached. 

NOTE. — This  is  a  new  clause,  introduced  to  make  it  plain  that  such 
discharge  may  be  made  by  the  orphans'  court,  and  that  the  respondent 
need  not  resort  to  insolvency  proceedings  in  the  court  of  common  pleas. 
There  is  a  conflict  of  authority  on  the  question  under  the  existing  law. 
See  Baker's  Estate,  21  D.  R.  177;  Ex  parte  Batdorf,  13  W.  N.  C.  417. 

140.  PROCEDURE    WHERE    PARTY    IS    WASTING 

TRUST   PROPERTY,  OR  IS  ABOUT  TO  AB- 
SCOND. 

9.  When  proof  shall  be  made,  on  oath  or  affirmation,  to  the 
satisfaction  of  the  court,  or  of  any  judge  thereof,  at  the  time 
of  presenting  a  petition,  or  at  any  stage  of  the  cause,  that  the 
party  therein  named  has  in  his   possession  trust  property  or 
effects,  which  he  is  wasting  or  otherwise  disposing  of  contrary 
to  his  duty  and  the  trust,  or  that  he  is  about  to  abscond  and  to 
carry  such  trust  property  or  effects  out  of  the  jurisdiction  of  the 
court,  it  shall  be  lawful  for  the  court,  or  such  judge,  to  award  a 
writ,  in  the  name  of  the  commonwealth,  to  the  sheriff  or  coroner, 
as  the  case  may  require,  of  the  proper  county,  returnable  on  a 
day  certain,  commanding  him  to  take  possession   of  all  such 
trust  property  and  effects  specified  in  such  writ,  and  to  hold  the 
same  subject  to  the  order  of  the  court,  and  also  to  attach  all 
debts  due  to  such  trust,  whether  by  bond,  mortgage  or  otherwise, 
and  all  stocks  in  incorporated  companies,  and  serve  a  copy  of 
such  writ  upon  each  debtor,  and  upon  each  company  in  which 
stock  may  be  held  belonging  to  the  trust  as  aforesaid :   Provided, 
That  before  the  execution  of  such  writ,  the  sheriff  or  coroner,  as 

6 


82         ORPHANS'  COURT  ACT— SECTION  18  (&)  9,  10,  11,  12 

the  case  may  be,  may  require  of  the  party  at  whose  ^instance  such 
writ  may  have  been  issued,  sufficient  security  to  indemnify  him 
against  any  damages  arising  from  the  execution  thereof :  And 
provided  also,  That  if  the  party  against  whom  such  writ  may 
issue  shall  give  sufficient  security  to  such  sheriff  or  coroner,  that 
the  trust  property  or  effects  specified  in  such  writ  shall  be  forth- 
coming at  the  return  thereof,  then  such  sheriff  or  coroner  shall 
not  execute  the  same,  but  shall  make  return  of  the  facts  to  the 
court. 

NOTE.— This  is  Clause  XIX  of  Section  57  of  the  Act  of  1832.  In  line  2, 
the  words  "in  vacation"  are  omitted  as  also  in  line  9.  In  line  12,  after 
"day  certain"  the  following  words  are  omitted :  "to  the  orphans'  court, 
to  be  convened  for  that  purpose,  if  the  said  court  shall  not  then  be  in 
session." 

In  line  5,  and  wherever  the  words  "trust  property"  appear,  the  comma 
between  the  words,  which  appears  in  the  Act  of  1832,  is  omitted.  It  did 
not  appear  in  the  original  draft  of  the  Act  of  1832. 

141.  ENFORCEMENT   OF  FINAL   ORDER   AND   DE- 

CREE   FOR    DELIVERY    OF    TRUST    PROP- 
ERTY. 

10.  The  like  proceedings  may  be  had,  where  the  court  has 
made  a  final  order  and  decree   for  the  delivery  of   the  trust 
property  and  effects  by  the  respondent,  to  any  person  who  may 
be  designated  by  law,  or  by  the  order  of  the  court,  to  receive 
them. 

142.  ORDER  AS  TO  FINAL  DISPOSITION  OF  TRUST 

PROPERTY. 

11.  On  the  return  of   such  writ,  the  court  may  make  such 
order  respecting  the  disposition  of  such  trust  property  and  effects 
as  may  be  necessary  and  proper,  according  to  the  principles  of 
justice  and  equity. 

NOTE,— This  is  Clause  XXI  of  Section  57  of  the  Act  of  1832,  3  Purd. 
3377,  with  the  substitution  of  "make"  for  "take"  in  the  first  line. 

143.  DECREE  IN   SEQUESTRATION   PROCEEDINGS 

WHEN    PARTY    DOES    NOT    APPEAR;     SE- 
CURITY BY  COMPLAINANT. 

12.  When  a  decree  shall  have  been  made  against  any  party 
who  shall  not  have  appeared  according  to  the  requisitions  of  the 
citation,  and  a  sequestration  shall  have  issued  against  the  real 
or  personal  estate  of  such  party,  the  court  may  order  the  decree 


ORPHANS'  COURT  ACT^SEcrioN  18  (6)   12,  13,  14,   (c)      83 

to  be  satisfied  out  of  the  estate  and  effects  sequestered :  Provided, 
That  such  order  shall  not  be  carried  into  execution,  until  the 
complainant  shall  have  given  security,  to  the  satisfaction  of  the 
court,  to  abide  the  order  of  the  court,  touching  the  restitution  of 
what  he  may  have  received,  in  case  the  respondent  shall  appear, 
and  be  admitted  to  defend  the  suit ;  but  if  such  security  shall  not 
be  given,  the  estate  and  effects  sequestered,  or  the  proceeds 
thereof,  shall  remain  subject  to  the  direction  of  the  court,  to 
abide  its  further  order. 

144.  REOPENING  OF  SUCH  DECREE. 

13.  If  the  party,  against  whom  such  decree  shall  have  been 
made,  or  his  representatives,  shall,  within  one  year  after  personal 
notice  of  such  decree,  and  within  five  years  after  the  entry  thereof, 
when  no  such  notice  shall  have  been  given,  present  a  petition  to 
the  same  court,  praying  to  be  admitted  to  be  heard,  and  shall 
pay  such  costs  as  the  court  shall  adjudge,  the  party  so  petitioning 
shall  be  admitted  to  a  defence,  and  the  case  shall  then  proceed,  in 
like  manner  as  if  such  party  had  appeared  in  due  season,  and  no 
decree  had  been  made. 

145.  FAILURE   OF   RESPONDENT   TO   APPLY   FOR 

REOPENING. 

14.  If  such  party,  or  his  representatives,  shall  not,  within  such 
period,  present  a  petition  as  aforesaid,  the  court  may  make  such 
final  order  and  decree,  both  in  respect  to  any  estate  or  effects 
that  may  have  been  sequestered  and  in  respect  to  the  matters  in 
controversy  in  the  case,  as  may  be  according  to  justice  and  equity; 
and  may,  if  necessary,  award  a  writ  in  the  nature  of  a  fieri  facias, 
in  the  manner  hereinbefore  provided,  as  in  the  case  where  the 
party  appears. 

146.  PROCESS  TO  RECOVER  FINES,  FORFEITURES 

AND  AMERCEMENTS. 

(c)  Each  of  the  orphans'  courts  shall  have  power  to  award 
process,  to  levy  and  recover  such  fines,  forfeitures  and  amerce- 
ments as  shall  be  imposed,  taxed  or  adjudged  by  them  respec- 
tively. 

NOTE.— This  is  Section  20  of  the  Act  of  June  16,  1836,  P.  L.  792,  3  Purd. 
3370,  limited  to  the  orphans'  court. 


84  ORPHANS'  COURT  ACT— SECTION  18  (rf),  (<?)  i 

147.  DIRECTION  OF,  AND  PROCEDURE  ON,  WRITS 

OF  FI.  FA. 

(d)  Writs  of  fieri  facias  shall  be  directed  to,  and  executed  by 
the  sheriff  or  coroner,  as  the  case  may  require,  of  the  proper 
county,  and  the  proceedings  thereon  shall  be  the  same  as  on 
writs  of  fieri  facias  against  personal  property  issued  by  the  court 
of  common  pleas  of  the  same  county. 

NOTE.— This  is  Clause  XVI  of  Section  57  of  the  Act  of  1832,  3  Purd 
3376,  altered  by  inserting  the  words  "against  personal  property." 

148.  TRANSCRIPTS   TO   THE    COMMON    PLEAS    OF 

ORDERS  UPON  PARTIES,  OTHER  THAN 
FIDUCIARIES  TO  PAY  MONEY.— FILING 
TRANSCRIPTS  AND  EFFECT  THEREOF,  EX. 
ECUTIONS. 

(e)  i.  It  shall  be  the  duty  of  the  prothonotaries  of  the  courts 
of  common  pleas  to  file  and  docket,  whenever  the  same  shall  be 
furnished  by  any  parties  interested,  certified  transcripts  of  any 
definitive  orders  of  the  orphans'  court  of  the  same  or  any  other 
county  upon  parties  other  than  fiduciaries,  to  pay  certain  sums 
of  money,  which  transcripts,  so  filed,  shall  constitute  judgments, 
which  shall  be  liens  against  the  real  estate  of  the  persons  ordered 
to  pay  from  the  time  of  such  entry  until  payment,  distribution 
or  satisfaction.     Executions  may  be  issued  thereon  out  of  said 
court  of   common  pleas  against  the   real   estate   only   of    such 
persons,  by  any  party  or  parties  interested,  for  the  recovery  of 
so  much  as  may  be  due  to  them  respectively.    The  liens  of  such 
judgments  shall  cease  at  the  expiration  of  five  years  from  the 
time  of  the  entry  aforesaid,  unless  revived  by  scire  facias  in  the 
manner  by  law  directed  in  the  cases  of  judgments  of  the  courts 
of  common  law. 

In  case  of  an  appeal  from  the  orphans'  court,  the  judgment 
shall  be  for  no  more  than  the  amount  finally  decreed  by  the 
appellate  court  to  be  due;  and  it  shall  be  the  duty  of  the 
prothonotary  of  the  common  pleas,  on  such  decree  of  the  ap- 
pellate court  being  certified  to  him,  to  enter  on  his  docket  the 
amount  so  found  due  and  decreed  by  the  appellate  court.  If 
such  amount  be  greater  than  that  decreed  by  the  orphans'  court, 
the  judgment  for  such  excess  shall  take  effect  only  from  the  time 
of  entering  the  decree  of  the  appellate  court ;  but  if  the  amount 
be  reduced  by  the  final  decree  of  the  appellate  court,  the  pro- 


ORPHANS'  COURT  ACT— SECTIONS  18  (<?)  i,  2-19  85 

thonotary  shall  reduce  the  amount  originally  entered  on  his 
judgment  docket  and  index  accordingly;  and  such  final  decree, 
upon  appeal,  being  certified  and  filed  in  said  court  of  common 
pleas,  the  said  term  of  five  years  shall  be  counted  from  the  time 
of  such  entry. 

NoTE. — This  is  founded  on  Section  51  (a)  of  the  Fiduciaries  Act  (see 
561  infra)  which  relates  to  the  certification  of  balances  due  by  fiduciaries 
or  amounts  ordered  to  be  paid  by  them.  The  present  section  is  intended 
to  cover  the  certification  of  decrees  against  other  persons  for  the  payment 
of  money.  It  being  provided  by  clause  (a)  3  (see  129  supra)  of  the  present 
section  that  only  personal  property  may  be  sold  under  execution  from  the 
orphans'  court,  this  clause  is  necessary  in  order  to  provide  a  method  of 
selling  real  estate. 

The  phraseology  covers  the  provisions  as  to  filing  transcripts  in  other 
counties  contained  in  the  Act  of  June  5,  1885,  P.  L.  78,  2  Purd.  1426,  which 
is  recommended  for  repeal  so  far  as  it  relates  to  orders  and  decrees  of 
the  orphans'  court. 

149.  SATISFACTION    AND    DISCHARGE    OF    JUDG- 

MENTS ON  TRANSCRIPTS. 

2.  When  the  person  liable  shall  have  fully  paid  and  discharged 
the  amount  of  such  judgment,  the  parties  who  have  received 
payment  shall  acknowledge  satisfaction  thereof,  on  the  record  of 
the  court  of  common  pleas.  In  case  of  neglect  or  refusal  so  to 
do,  for  the  space  of  thirty  days  after  request  in  writing  and 
tender  of  all  the  costs,  the  orphans'  court,  on  due  proof  to  them 
made  that  the  entire  amount  due  from  such  person,  according 
to  the  order  of  the  orphans'  court,  has  been  fully  paid  and 
discharged,  may  make  an  order  for  his  release  from  such  re- 
corded judgment,  which  order,  being  certified  to  the  court  of 
common  pleas,  shall  be  entered  on  their  records  and  shall  operate 
as  a  full  satisfaction  and  discharge  of  such  judgment. 

NOTE. — This  is  founded  on  Section  51  (fc)  of  the  Fiduciaries  Act 
(see  562  infra). 

150.  FEES  OF  SHERIFF;    MILEAGE;   POSTAGE. 

SECTION  19.  The  fees  to  be  taken  by  the  sheriffs  of  each  county 
for  the  services  enjoined  by  this  act  shall  be  the  same  as  those 
allowed  for  like  services ;  and  for  executing  a  writ  of  sequestra- 
tion the  same  fees  shall  be  allowed  as  upon  a  writ  of  foreign 
attachment,  together  with  reasonable  costs  and  expenses,  accord- 
ing to  the  discretion  of  the  court.  On  all  writs  and  process  sent 


86         ORPHANS'   COURT  ACT— SECTIONS   19-20(0),    (fr)  i 

from  another  county,  no  mileage  shall  be  allowed,  except  for  the 
distance  actually  traveled,  but  an  allowance  shall  be  made  for 
the  transmission  of  such  writs  and  process,  to  the  clerk  of  the 
court  from  which  they  may  have  issued,  at  the  common  rates  of 
postage. 

NOTE.— This  is  Section  60  of  the  Act  of  March  29,  1832,  P.  L.  213,  3 
Purd.  3385,  except  that,  in  line  3,  the  word  "already"  is  omitted  before 
"allowed." 

151.  WITNESSES  AND  EVIDENCE,— SUBPOENAS. 

SECTION  20.  (a)  Each  of  the  orphans'  courts  of  this  common- 
wealth is  empowered  to  issue  writs  of  subpoena,  under  its  official 
seal,  into  any  county  of  this  commonwealth,  to  summon  and 
bring  before  the  respective  court,  any  person  to  give  testimony 
in  any  cause  or  matter  depending  before  it,  under  the  penalties 
that  are  or  shall  be  appointed  and  allowed  in  any  such  case  by 
the  laws  of  this  commonwealth. 

NOTE. — This  is  Section  22  of  the  Act  of  June  16,  1836,  P.  L.  793,  3 
Purd.  3370,  which  relates  to  the  other  courts  as  well  as  the  orphans' 
court. 

"Its"  and  "it"  have  been  substituted  for  "their"  and  "them,"  and  "that 
are  or  shall  be"  for  "hitherto"  after  "penalties." 

152.  METHODS      OF      TAKING      TESTIMONY,  — IN 

GENERAL. 

(&)  i.  In  all  proceedings  begun  by  petition,  where  an  issue  of 
fact  is  raised,  it  shall  be  within  the  discretion  of  the  orphans' 
court,  by  general  rule  or  by  special  order  in  the  case,  to  provide 
for  the  reference  of  the  case  to  a  master  to  take  the  testimony 
and  report  his  findings  and  his  recommendations  as  to  a  decree, 
or  to  provide  for  the  taking  of  depositions  before  a  notary  public 
or  other  official  authorized  to  administer  oaths  and  affirmations, 
or  to  provide  for  the  taking  of  testimony  before  a  judge  of  said 
court.  The  office  of  examiner  in  the  orphans'  court,  appointed 
merely  for  the  purpose  of  taking  testimony,  is  hereby  abolished, 
except  in  the  cases  mentioned  in  paragraph  3  of  this  clause,  and 
except  in  cases  where,  at  the  time  of  the  approval  of  this  act, 
examiners  have  been  appointed  and  are  still  in  office. 

NOTE. — This  is  a  new  clause,  framed  to  do  away  with  the  taking  of 
testimony  before  an  examiner  without  power  to  rule  on  offers  of  testi- 
mony or  to  recommend  a  decree,  and  to  substitute  the  appointment  of  a 


ORPHANS'  COURT  ACT— SECTION  20  (6)  i,  2,  3  87 

master  or  the  taking  of  depositions  on  rule  before  any  official  authorized 
to  administer  oaths. 

In  a  proceeding  in  the  orphans'  court  on  petition,  answer  and  replica- 
tion, the  proper  practice  is  to  move  for  the  appointment  of  a  master  to 
take  the  testimony  and  report  his  findings  of  fact  to  the  court  unless  the 
parties  can  agree  upon  the  facts. 

Under  the  Orphans'  Court  Act  of  June  7,  1917,  Sec.  20  (6)  P.  L.  363, 
380,  the  court  may,  in  its  discretion,  authorize  the  taking  of  depositions 
before  a  notary  public,  but  such  discretion  will  only  be  exercised  in 
matters  of  small  importance.  DiBattista's  Est,  30  Dist.  988. 

153.  DEPOSITIONS  OF  AGED,  INFIRM  AND  GOING 

WITNESS;    COMMISSIONS    AND    LETTERS 
ROGATORY. 

2.  Every   orphans'   court   of   this   commonwealth   shall   have 
power  to  make  rules  regulating  the  taking  of  depositions  of  aged, 
infirm  and  going  witnesses,  and  the  issuance  and  execution  of 
commissions  to  take  testimony  and  letters  rogatory. 

NOTE. — This  clause  is  also  new,  but  is  declaratory  of  the  present  law. 

This  subject  was  covered  in  substance  by  the  8th  section  of  the  Act 
of  May  23,  1887  (P.  L.  158)  relating  to  the  competency  of  witnesses, 
which  provides  that  "in  any  civil  proceedings  the  testimony  of  any  com- 
petent witness  may  be  taken  by  commission  or  deposition  in  accordance 
with  the  laws  of  this  commonwealth  and  the  rules  of  the  proper  court." 
Per  Criswell,  P.  J.,  Bleakley's  Estate,  28  Dist.  289,  37  Lane.  29,  15  Del.  199. 

In  view  of  the  age  of  the  petitioner,  her  physical  infirmities  and  the 
expense  incident  to  a  long  journey,  an  appellant  from  the  decree  of  the 
register  of  wills  admitting  to  probate  a  writing  purporting  to  be  the 
last  will  and  testament  of  a  decedent,  is  a  witness  whose  testimony  may 
be  taken  by  commission  under  this  section  of  the  Act.  Bleakley's  Estate, 
28  Dist.  289,  37  Lane.  29,  15  Del.  199. 

154.  ORAL  DEPOSITIONS  OUTSIDE  OF  STATE. 

3.  Where  the  testimony  of  any  witness  is  desired  to  be  read  in 
evidence  in  any  proceeding  now  or  hereafter  pending  in  any 
orphans'  court  of  this  commonwealth,  and  such  witness  resides 
in  any  other  state,  territory  or  possession  of  the  United  States  of 
America,  or  in  any  foreign  country,  the  court  may,  on  the  appli- 
cation of  any  party,  provide  for  the  taking,  in  such  other  state, 
territory,  possession  or  foreign  country,  of  the  testimony  of  such 
witness  or  witnesses  orally,  before  an  examiner  appointed  by  the 
court,  or  before  any  person  authorized  by  the  laws  of  such  other 
state,  territory,  possession  or  foreign  country  to  administer  oaths. 


88         ORPHANS'  COURT  ACT— SECTION  20  (6)  3,  (O,  (<0 

In  granting  any  such  application  the  court  may  impose  such 
terms  as  it  shall  deem  proper,  as  to  the  payment  by  the  party 
applying  therefor  of  the  costs  and  expenses  involved,  including 
reasonable  counsel  fees  and  traveling  expenses,  and  may  prescribe 
the  notice  to  be  given  and  the  time  within  which  such  testimony 
shall  be  taken. 

NOTE.— This  is  founded  on  Section  i  of  the  Act  of  June  8,  1911,  P.  L. 
709,  5  Purd.  6091,  which  relates  to  "any  of  the  civil  courts  of  this  com- 
monwealth." 

In  view  of  the  nature  of  the  controversy  under  investigation  (an  appeal 
from  the  probate  of  an  alleged  will)  and  in  view  of  the  age  of  appellant, 
her  physical  condition  and  the  expense  incident  to  a  long  journey  the 
court  held  that  an  oral  examination  of  the  witness  as  authorized  by 
this  section  would  be  preferable  to  a  commission  in  eliciting  fully  her 
knowledge  on  the  subject  in  controversy.  Bleakley's  Estate,  28  Dist.  289, 
37  Lane.  29,  15  Del.  199. 

155.  PRODUCTION  OF  BOOKS  AND  PAPERS. 

(c)  The  orphans'  court  shall  have  power  to  compel  the  pro- 
duction of  any  books,  papers  or  other  documents,  necessary  to 
a  just  decision  of  the  question  before  them,  or  before  an  auditor 
or  master. 

NOTE.— This  is  the  last  part  of  Section  56  of  the  Act  of  1832,  P.  L. 
208,  3  Purd.  3380. 

The  first  part  of  that  section  conferred  the  right  to  cross-examine 
parties  in  the  orphans'  court  as  though  they  were  made  defendants  in  a 
bill  in  equity  for  discovery,  which  provision  is  now  obsolete  in  view  of 
the  later  general  acts  on  the  subject. 

156.  PERPETUATION  OF  TESTIMONY. 

(d)  Every  orphans'  court  of  this  commonwealth  shall  have 
the  jurisdiction  and  powers  of  a  court  of  chancery,  so  far  as 
relates  to  the  perpetuation  of  testimony  in  all  cases,  including 
cases  of  lost  or  destroyed  records  of  such  court,  whether  such 
records  were  lost  or  destroyed  before  or  after  the  passage  of  this 
act,  and  the  same  proceedings,  orders,  decrees  and  judgments 
shall  be  had  under  this  section,  mutatis  mutandis,  as  in  cases  now 
authorized  by  law,  and  with  the  like  effect;    and  when  proved, 
such  records  shall  have  the  same  legal  operation  as  the  original 
records  would  have  had.     Notice  of  any  proceeding  under  this 
clause  shall  be  given  to  all  persons  interested,  or  their  guardians 
or  committees. 


ORPHANS'  COURT  ACT— SECTIONS  20  (d),  (e)  i,  2,-2i  (a)      89 

NOTE. — This  is  founded  on  Section  I  of  the  Act  of  April  i,  1863,  P.  L,. 
205,  3  Purd.  3385,  which,  however,  is  limited  to  cases  of  lost  or  destroyed 
records.  The  first  proviso  of  that  section  has  been  omitted,  its  substance 
being  covered  by  a  modification  of  the  phraseology  of  the  first  part  of 
the  clause,  and  the  last  sentence  has  been  substituted  for  the  provision 
that  notice  shall  be  served  upon  "minors  and  their  guardians." 

157.  TESTIMONY     IN     PROCEEDINGS     REMOVED 

FROM  REGISTER  OF  WILLS;  WHAT  TESTI- 
MONY TO  BE  BASIS  OF  DECISION. 

(e)  i.  On  appeal  from  the  decision  of  any  register  of  wills, 
or  in  proceedings  removed  from  any  register  of  wills  by  certifi- 
cation, the  orphans'  court  shall  hear  the  testimony  de  novo, 
unless  all  parties  appearing  in  the  proceeding  shall  agree  that 
the  case  shall  be  heard  on  the  testimony  taken  before  such 
register:  Provided,  That  in  all  cases  the  court  shall  have  power 
to  require  the  production  before  it,  for  examination,  of  the  wit- 
nesses already  examined,  or  of  any  other  witnesses. 

NOTE. — This  is  a  new  clause,  introduced  in  order  to  remove  any  pos- 
sible doubt  as  to  the  procedure  in  such  cases. 

158.  TESTIMONY  TAKEN  IN  ORPHANS'  COURT  TO 

BE  REDUCED  TO  WRITING. 

2.  The  testimony  of  all  witnesses  examined  in  any  cause  liti- 
gated before  any  orphans'  court  on  appeal  from  any  register 
of  wills,  or  on  removal  from  any  register  of  wills  by  certification, 
shall  be  taken  in  writing  and  made  a  part  of  the  proceedings 
therein,  upon  which  testimony  the  court  having  jurisdiction  of 
such  cause  by  appeal  may  affirm,  reverse,  alter  or  modify  the 
decree  of  the  orphans'  court. 

NOTE. — This  is  founded  on  Section  40  of  the  Act  of  March  15,  1832 
(P.  L.  135)  4  Purd.  4086,  which  was  derived  from  Section  18  of  the  Act 
of  April  13,  1791,  3  Sm.  L.  28 ;  the  Act  of  1832,  however,  referred  to  the 
register's  court. 

The  words  "on  appeal  from  any  register  of  wills,  or  on  removal  from 
any  register  of  wills  by  certification,"  have  been  inserted  to  show  that 
the  paragraph  does  not  apply  to  other  proceedings  in  the  orphans'  court. 

159.  ISSUES   TO   THE    COMMON    PLEAS,— IN    GEN- 

ERAL. 

SECTION  21.  (a)  The  orphans'  court  shall  have  power  to  send 
an  issue  to  the  court  of  common  pleas  of  the  same  county  for 


90  ORPHANS'  COURT  ACT— SECTION  21  (a),  (b) 

the  trial  of  facts  by  jury,  whenever  they  shall  deem  it  expedient 
so  to  do. 

NOTE— This  is  Section  55  of  the  Act  of  March  29,  1832,  P.  L.  208, 
3  Purd.  3378. 

See  Klagholz's  Est.,  27  Dist  95 ;  Byerly's  Est.,  258  Pa.  410,  102  Atl.  143. 

160.     IN  PROCEEDINGS  REMOVED  FROM  REGISTER 
OF   WILLS. 

(b)  Whenever  a  dispute  upon  a  matter  of  fact  arises  before 
any  orphans'  court,  on  appeal  from  any  register  of  wills  or  on 
removal  from  any  register  of  wills  by  certification,  the  said  court 
shall,  at  the  request  of  either  party,  direct  a  precept  for  an  issue 
to  the  court  of  common  pleas  of  the  county  for  the  trial  thereof, 
which,  in  the  case  of  an  issue  devisavit  vel  non,  shall  be  sub- 
stantially in  the  following  form :  (L.  S.)  County,  ss. 
The  Commonwealth  of  Pennsylvania :  To  the  judges  of  the  court 
of  common  pleas  of  the  said  county,  greeting:  Whereas,  A.  B., 
on  the  day  of  ,  in  the  year,  etc.,  presented  to 
G.  H.,  our  register  of  wills  of  said  county,  for  probate,  a  certain 
writing  hereto  annexed,  purporting  to  have  been  made  the 
day  of  ,  in  the  year,  etc.,  (or  otherwise  describing  the 
paper  in  question),  which  said  writing  the  said  A.  B.  avers  is 
the  last  will  and  testament  of  the  said  C.  D.,  and  whereas  E.  D., 
who  is  a  son  and  heir  of  the  said  C.  D.  (or  intermarried  with 
F.  D.,  who  is  a  daughter  and  heir,  etc.,  according  to  the  fact), 
hath  objected  before  our  said  register  that  the  said  writing  was 
procured  by  duress  and  constraint  (stating  the  matters  of  fact 
objected),  and  whereas  our  said  register  hath  admitted  (or 
refused  to  admit)  said  writing  to  probate  as  the  last  will  and 
testament  of  the  said  C.  D.,  and  whereas  the  said  E.  D.  hath 
appealed  from  the  decree  of  our  said  register  to  our  orphans' 
court  for  the  said  county  (or  as  the  case  may  be)  and  whereas 
the  said  E.  D.  (or  A.  B.)  hath  requested  that  an  issue  may  be 
directed  into  our  said  court  of  common  pleas  to  try  by  a  jury 
the  validity  of  the  said  writing,  and  the  matters  of  fact  which  may 
be  objected  thereto  in  our  said  court;  therefore,  we  command 
you  that  you  cause  an  action  to  be  entered  upon  the  records  of 
our  said  court,  as  of  the  day  of  the  delivery  of  this  our  precept 
into  the  office  of  the  prothonotary  of  our  said  court,  between  the 
said  A.  B.  and  the  said  E.  D.,  so  that  an  issue  therein  may  be 


ORPHANS'  COURT  ACT— SECTION  21  (&),  (c)  i  91 

formed  upon  the  merits  of  the  controversy  between  the  said 
parties,  and  tried  in  due  course  according  to  the  practice  of  our 
said  courts  in  actions  commenced  by  writ ;  and  further,  that  you 
cause  all  other  persons  who  may  be  interested  in  the  estate  of 
the  said  C.  D.,  as  heirs,  relations  or  next  of  kin,  devisees,  legatees 
or  executors,  to  be  warned,  so  that  they  may  come  into  our  said 
court  and  become  party  to  the  said  action,  if  they  shall  see  cause, 
and  that  you  certify  the  result  of  the  trial  so  had  in  the  premises 
into  our  said  orphans'  court.  Attest.  I.  J.,  President  Judge 
of  the  Orphans'  Court  of  the  said  county. 

Where  the  issue  directed  is  other  than  an  issue  devisavit  vel  non, 
the  foregoing  form  shall  be  changed,  so  far  as  necessary,  in  ac- 
cordance with  the  circumstances  of  the  case. 

And  the  facts  established  by  the  verdict  returned  shall  not  be 
re-examined  in  any  appeal. 

NOTE. — This  is  Section  41  of  the  Act  of  March  15,  1832,  4  Purd.  4088, 
with  the  substitution  of  "orphans'  court"  for  "register's  court,"  and 
the  insertion  of  the  words  beginning  "on  appeal"  and  ending  "certifica- 
tion," in  order  to  show  that  the  section  applies  only  to  cases  coming 
up  from  the  register. 

Section  41  of  the  Act  of  1832  refers  to  the  form  of  precept  prescribed 
for  issuance  by  the  register.  Since  this  form  is  embodied  in  the  new 
Register  of  Wills  Act,  a  similar  reference  cannot  be  made  in  the  present 
section,  and  the  form  is  therefore  set  forth  at  length,  with  the  proper 
changes  for  an  issue  devisavit  vel  non. 

Under  this  section  of  the  act  the  dispute  must  be  substantial  and  must 
arise  from  a  conflict  of  testimony  and  must  also  be  as  to  some  matter  of 
fact,  material  to  the  decision  of  the  question  at  issue.  The  question  of 
legitimacy  of  an  alleged  son  and  heir  of  the  decedent  is  not  such  a 
material  or  essential  question  as  to  warrant  the  direction  of  a  precept  for 
an  issue  to  the  court  of  common  pleas.  Wand's  Est.,  50  Pa.  C.  C.  516. 

161.     DISTRIBUTION   OF  PROCEEDS   OF  SALES  OF 
REAL  ESTATE,— AFFIDAVIT. 

(c)  i.  Before  an  issue  shall  be  directed  upon  the  distribution 
of  money  arising  from  any  sale  of  real  estate  made  under  order 
of  the  orphans'  court,  the  applicant  for  such  issue  shall  make 
affidavit  that  there  are  material  facts  in  dispute  therein,  and  shall 
set  forth  the  nature  and  character  thereof,  upon  which  affidavit 
the  court  shall  determine  whether  such  issue  shall  be  granted, 
subject  to  appeal  by  such  applicant,  if  the  issue  be  refused,  in, 
like  manner  as  in  other  cases  in  which  such  appeal  is  or  may  be 
allowed  by  law. 


92          ORPHANS'  COURT  ACT— SECTIONS  21  (c)   i,  2-22  (a) 

NOTE. — This  is  the  proviso  to  Section  2  of  the  Act  of  April  20,  1846, 
P.  L.  411,  3  Purd.  3379,  which  applies  also  to  "sales  under  execution." 
While  the  subject-matter  of  this  clause  is  probably  covered  by  clause  (a) 
of  the  present  section,  the  Commissioners  have  concluded  to  recommend 
its  inclusion.  The  section  of  the  Act  of  1846  is  not  recommended  for 
repeal  except  so  far  as  it  relates  to  the  orphans'  court. 

The  following  changes  have  been  made :  In  lines  2  and  3,  "any  sale 
of  real  estate  made  under  order  of  the  orphans'  court"  has  been  sub- 
stituted for  "orphans'  court  sales."  In  line  8,  "a  writ  of  error  or"  has 
been  omitted  before  "appeal,"  and,  at  the  end,  "appeal  is  or  may  be 
allowed  by  law"  has  been  substituted  for  "writ  now  lies." 

162.  INVESTMENT  OF  FUND  PENDENTE  LITE. 

2.  Upon  granting  any  such  issue,  it  shall  be  discretionary  with 
the  court,  upon  the  application  of  the  party  or  parties  appearing, 
by  the  record,  prima  facie  entitled  to  the  said  fund,  to  order  the 
same  to  be  invested,  pendente  lite,  in  investments  allowed  by  law 
in  the  case  of  trustees. 

NOTE. — This  is  Section  3  of  the  Act  of  April  20,  1846,  P.  L.  411,  3  Purd. 
3380,  which,  like  Section  2  of  that  Act,  is  to  be  repealed  only  so  far  as  it 
relates  to  the  orphans'  court. 

In  line  2,  after  "court,"  these  words  are  omitted :  "so  soon  as  the 
money  arising  from  such  sale  shall  have  been  paid  into  court."  At  the 
end,  "investments  allowed  by  law  in  the  case  of  trustees"  has  been 
substituted  for  "the  debt  of  the  United  States,  or  some  other  sufficient 
security,  subject  to  the  decree  of  the  court." 

163.  APPEALS,— RIGHT  OF  APPEAL  AND  ITS  EF- 

FECT. 

SECTION  22.  (a)  Any  party  aggrieved  by  the  definitive  sentence 
or  decree  of  any  orphans'  court,  or  his  legal  representatives, 
may  appeal  therefrom  to  the  proper  appellate  court  within  six 
months  from  the  time  of  pronouncing  such  final  sentence  or 
decree :  Provided,  That  no  appeal  from  any  decree  of  such  court, 
concerning  the  validity  of  a  will,  or  the  right  to  administer,  shall 
suspend  the  powers  or  prejudice  the  acts  of  any  executor  or 
administrator  to  whom  letters  have  been  granted :  And  provided 
further,  That  no  reversal  or  modification  of  any  decree  or  pro- 
ceedings of  the  orphans'  court,  for  the  sale  of  real  estate,  shall 
have  the  effect  of  divesting  any  estate  or  interest  acquired  under 
such  decree  or  proceeding,  by  persons  not  party  thereto,  where 
the  orphans'  court  had  jurisdiction  of  the  case. 

NOTE. — This  is  founded  on  Section  42  of  the  Act  of  March  15,  1832,  4 
Purd.  4092,  and  Section  59  of  the  Act  of  March  29,  1832,  P.  L,.  213,  3 


ORPHANS'  COURT  ACT— SECTIONS  22(0),   ^-23-24         93 

Purd.  3383-4.  The  former  section  relates  to  appeals  from  the  register's 
court  in  cases  where  the  sum  in  controversy  exceeds  $150,  and  provides 
that  the  powers  of  an  executor  shall  not  be  suspended  by  an  appeal  if 
he  gives  sufficient  security  to  the  register  for  the  faithful  administration 
of  his  trust,  and  that  on  his  refusal  to  give  security  the  register  shall 
grant  letters  of  administration  during  the  dispute,  which  shall  suspend 
the  power  of  the  executor  during  that  time.  In  that  section,  the  period 
for  appeal  is  one  year.  The  provisions  which  are  omitted  in  the  present 
draft  seem  unnecessary  in  view  of  the  provisions  of  the  Fiduciaries  Act 
as  to  the  requiring  of  security  and  the  granting  of  letters  pendente  lite. 
The  first  proviso  of  Section  59  of  the  Act  of  March  29,  1832,  and 
Section  8  of  the  Act  of  May  19,  1874,  P-  L.  206,  are  omitted,  having  been 
repealed  by  Section  22  of  the  general  appeals  Act  of  May  19,  1897, 
P.  L.  72. 

See  form  of  bond  on  appeal,  25. 

164.  DISPOSITION  OF  CASES  ON  APPEAL. 

(&)  The  supreme  and  superior  courts  of  this  commonwealth 
shall,  in  all  cases  of  appeal  from  the  definitive  sentence  or  decree 
of  the  orphans'  court,  hear,  try  and  determine  the  same  as  to 
right  and  justice  may  belong,  and  decree  according  to  the  equity 
thereof ;  and  may  refer  the  same  to  auditors  when,  in  their  dis- 
cretion, they  may  think  proper. 

NOTE — This  is  a  combination  of  Section  4  of  the  Act  of  April  14,  1835, 
P.  L.  276,  3  Purd.  3384,  and  Section  2  of  the  Act  of  June  16,  1836,  P.  L. 
683,  3  Purd.  3385,  extended  so  as  to  include  the  superior  court. 

165.  SHORT  TITLE. 

SECTION  23.  This  act  shall  be  known  and  may  be  cited  as  the 
Orphans'  Court  Act  of  1917. 

166.  REPEALER. 

Section  24.  The  following  acts  and  parts  of  acts  of  assembly 
are  repealed  as  respectively  indicated.  The  repeal  of  the  first 
section  of  an  act  shall  not  repeal  the  enacting  clause  of  such  act. 

Sections  i,  8  and  9  of  an  act  entitled  "An  Act  for  establishing 
orphans'  courts,"  passed  March  27,  1713,  I  Sm.  L.  81,  absolutely. 

Sections  5,  6  and  1 8  of  an  act  entitled  "An  Act  to  establish  the 
judicial  courts  of  this  commonwealth,  in  conformity  to  the  alter- 
ations and  amendments  in  the  constitution,"  passed  April  13,  1791, 
3  Sm.  L.  28,  absolutely. 

Section  24  of  an  act  entitled  "An  Act  directing  the  descent  of 


94  ORPHANS'  COURT  ACT— SECTION  24 

intestates'  real  estates,  and  distribution  of  their  personal  estates, 
and  for  other  purposes  therein  mentioned,"  passed  April  19,  1794, 
3  Sm.  L.  143,  absolutely. 

Sections  40,  41  and  42  of  an  act  entitled  "An  Act  relating  to 
registers  and  registers'  courts,"  approved  March  15,  1832,  P.  L. 
135,  absolutely. 

Sections  I  to  4  inclusive,  52,  and  55  to  60  inclusive  of  an  act 
entitled  "An  Act  relating  to  orphans'  courts,"  approved  March 
29,  1832,  P.  L.  190,  absolutely. 

Sections  52  to  57  inclusive  of  an  act  entitled  "An  Act  relative 
to  the  organization  of  the  courts  of  justice,"  approved  April  14, 
1834,  P.  L.  341,  absolutely. 

Section  4  of  an  act  entitled  "Supplement  to  the  act  passed  the 
twenty-ninth  day  of  March,  Anno  Domini,  one  thousand  eight 
hundred  and  thirty-two,  entitled  'An  Act  relating  to  orphans' 
courts,'  "  approved  April  14,  1835,  P.  L.  275,  absolutely. 

Section  2  of  an  act  entitled  "An  Act  supplementary  to  the 
various  acts  relating  to  orphans'  and  registers'  courts,  and  ex- 
ecutors and  administrators,  and  the  act  relating  to  the  measure- 
ment of  grain,  salt,  and  coal,"  approved  June  16,  1836,  P.  L.  682, 
absolutely. 

Section  19  of  an  act  entitled  "An  Act  relating  to  the  jurisdic- 
tions and  powers  of  courts,"  approved  June  16,  1836,  P.  L.  784, 
absolutely,  and  Sections  20,  21  and  22  of  the  same  act  in  so  far 
as  they  relate  to  the  orphans'  court. 

Section  8  of  an  act  entitled  "An  Act  to  confer  upon  the  orphans' 
court  of  Lancaster  County  certain  powers  in  relation  to  the  real 
estate  of  John  Lindemuth,  deceased,  and  for  other  purposes," 
approved  April  4,  1843,  P.  L.  131,  in  so  far  as  it  relates  to  the 
orphans'  court. 

Sections  2  and  3  of  an  act  entitled  "An  Act  relative  to  lien 
creditors  becoming  purchasers  at  judicial  sales,  and  for  other 
purposes,"  approved  April  20,  1846,  P.  L.  411,  in  so  far  as  they 
relate  to  the  orphans'  court. 

Section  2  of  an  act  entitled  "A  further  supplement  to  an  act, 
entitled,  'An  Act  relating  to  executions,'  passed  the  sixteenth  day 
of  June,  one  thousand  eight  hundred  and  thirty-six,"  approved 
April  21,  1846,  P.  L.  430,  absolutely. 

Section  18  of  an  act  entitled  "An  Act  relating  to  the  bail  of 
executrixes;  to  partition  in  the  orphans'  court  and  common 


ORPHANS'  COURT  ACT— SECTION  24  95 

pleas;  to  colored  convicts  in  Philadelphia;  to  the  limitation  of 
actions  against  corporations;  to  actions  enforcing  the  payment 
of  ground  rent;  to  trustees  of  married  women;  to  appeals  from 
awards  of  arbitrators  by  corporations;  to  hawkers  and  pedlers 
in  the  counties  of  Butler  and  Union ;  to  the  payment  of  costs  in 
actions  by  informers  in  certain  cases;  to  taxing  lands  situate  in 
different  townships ;  and  in  relation  to  fees  of  county  treasurers 
of  Lycoming,  Clinton  and  Schuylkill;  to  provide  for  recording 
the  accounts  of  executors,  administrators,  guardians  and  auditor's 
reports ;  and  to  amend  and  alter  existing  laws  relative  to  the  ad- 
ministration of  justice  in  this  commonwealth,"  became  a  law 
April  25,  1850,  by  reason  of  the  Governor's  failure  to  return  it 
within  ten  days,  P.  L.  569,  absolutely. 

Section  I  of  an  act  entitled  "An  Act  relating  to  official  seals," 
approved  March  6,  1854,  P.  L.  155,  in  so  far  as  it  relates  to  the 
orphans'  court. 

An  act  entitled  "An  Act  relative  to  the  perpetuation  of  testi- 
mony in  cases  of  lost  records,"  approved  April  i,  1863.  P.  L. 
205,  absolutely. 

Sections  2,  3,  4,  and  6  to  10  inclusive  of  an  act  entitled  "An 
Act  relating  to  the  organization  and  jurisdiction  of  orphans' 
courts,  and  to  establish  a  separate  orphans'  court  in  and  for 
counties  having  more  than  one  hundred  and  fifty  thousand  in- 
habitants, and  to  provide  for  the  election  of  judges  thereof," 
approved  May  19,  1874,  P.  L.  206,  absolutely. 

An  act  entitled  "An  Act  authorizing  the  holding  of  orphans' 
courts  by  other  than  the  regularly  commissioned  judges  in  certain 
cases,"  approved  March  4,  1875,  P.  L.  5,  absolutely. 

An  act  entitled  "An  Act  relating  to  orphans'  courts,"  approved 
March  18,  1875,  P.  L.  29,  absolutely. 

An  act  entitled  "An  Act  authorizing  the  president  or  additional 
law  judges  of  the  courts  of  common  pleas  to  hold  courts  of 
quarter  sessions,  and  oyer  and  terminer  and  orphans'  courts, 
in  certain  cases,"  approved  April  7,  1876,  P.  L.  19,  in  so  far  as  it 
relates  to  the  orphans'  court. 

An  act  entitled  "An  Act  to  provide  for  the  appointment  of  a 
president  judge  of  the  separate  orphans'  courts,  and  to  provide 
for  the  commission  thereof,"  approved  May  24,  1878,  P.  L.  131, 
absolutely. 

An  act  entitled  "An  Act  to  regulate  the  compensation  of  au- 
ditors and  commissioners,"  approved  June  4,  1879,  P.  L.  84,  in 


96  ORPHANS'  COURT  ACT-SucTioN  24 

so  far  as  it  relates  to  auditors  and  commissioners  appointed  by 
the  orphans'  court. 

An  act  entitled  "An  Act  to  amend  section  three  of  the  act  of 
assembly  of  May  nineteenth,  one  thousand  eight  hundred  and 
seventy-four,  entitled  'An  Act  relating  to  the  organization  and 
jurisdiction  of  orphans'  courts,  and  to  establish  a  separate 
orphans'  court  in  and  for  the  counties  having  more  than  one 
hundred  and  fifty  thousand  inhabitants,  and  to  provide  for  the 
election  of  judges  thereof,  fixing  the  salaries  of  judges  of  separate 
orphans'  courts,'  "  approved  June  13,  1883,  P.  L.  91,  absolutely. 

An  act  entitled  "An  Act  relative  to  the  transfer  of  orders  and 
decrees  for  the  payment  of  money  for  the  purpose  of  lien  and 
execution  into  other  counties  than  those  where  they  were  original- 
ly rendered,"  approved  June  5,  1885,  P.  L.  78,  in  so  far  as  it  re- 
lates to  orders  and  decrees  of  the  orphans'  court. 

An  act  entitled  "An  Act  relative  to  the  granting  of  citations 
and  rules  to  show  cause,  by  the  courts  of  this  commonwealth," 
approved  May  7,  1889,  P.  L.  102,  in  so  far  as  it  relates  to  the 
orphans'  court. 

An  act  entitled  "An  Act  requiring  all  public  records  within  this 
commonwealth  to  be  kept  in  the  English  language,"  approved 
May  31,  1893,  P.  L.  188,  in  so  far  as  it  relates  to  papers  filed  or 
recorded  in  the  orphans'  court  or  the  office  of  the  clerk  thereof. 

An  act  entitled  "An  Act  to  authorize  the  judges  of  separate 
orphans'  courts  to  hear  and  determine  proceedings  in  equity,  at 
the  request  of  the  judges  of  the  common  pleas,"  approved  April 
18,  1905,  P.  L.  208,  absolutely. 

An  act  entitled  "An  Act  authorizing  the  parties  in  interest,  or 
their  counsel,  to  select  auditors  and  masters  needed  in  judicial 
proceedings  except  in  divorce  cases,"  approved  April  i,  1909, 
P.  L.  95,  in  so  far  as  it  relates  to  proceedings  in  the  orphans' 
court. 

An  act  entitled  'An  Act  to  provide  for  the  taking  of  testimony 
to  be  used  in  any  of  the  civil  courts  of  record  in  this  common- 
wealth of  witnesses  residing  in  any  other  state  or  in  any  foreign 
country,"  approved  June  8,  1911,  P.  L.  709,  in  so  far  as  it  relates 
to  the  orphans'  court. 

An  act  entitled  "An  Act  to  authorize  the  judges  of  separate 
orphans'  court,  at  the  request  of  the  judges  of  the  common  pleas, 
to  hear  and  determine  all  issues  in  the  court  of  common  pleas, 


ORPHANS'  COURT  ACT— SECTION  24  97 

courts  of  oyer  and  terminer  and  general  jail  delivery,  and 
courts  of  quarter  sessions  of  the  peace,"  approved  July  19, 
1913,  P.  L.  844,  absolutely. 

An  act  entitled  "An  Act  to  authorize  the  judges  of  the  courts 
of  common  pleas,  of  judicial  districts  having  separate  orphans' 
courts,  to  hear  and  determine  all  matters  in  such  courts,  at  the 
request  of  the  judges  thereof,"  approved  April  21,  1915,  P.  L. 
156,  absolutely. 

All  other  acts  of  assembly,  or  parts  thereof,  that  are  in  any 
way  in  conflict  with  this  act,  or  any  part  thereof,  are  hereby 
repealed. 


THE  REVISED  PRICE  ACT 

of 
June  7,  1917,  (P.  L.  388) 

Preliminary  Note  by  Commission. 

The  Act  of  April  18,  1853,  P.  L.  503,  commonly  called  the 
Price  Act,  from  the  name  of  its  draftsman,  has  been  extremely 
beneficial  in  its  results  and  no  fundamental  changes  have  been 
considered  necessary.  It  has,  however,  been  amended  by  numerous 
statutes,  and  the  Commissioners  have  endeavored  in  this  revision 
to  arrange  its  provisions  in  more  symmetrical  order  and  to  consol- 
idate in  it  the  changes  that  have  been  made  from  time  to  time. 
The  notes  that  have  been  annexed  to  the  several  sections  in  the 
revised  act  as  now  reported  sufficiently  indicate  the  changes  that 
have  been  made  in  phraseology  and  those  that  are  due  to  amend- 
ments. 

TABLE  OF  CONTENTS 

1917  Section 

Pamphlet      Number 

Laws  Herein 

The  Revised  Price  Act,   388  167 

Section  I.  What  relief  may  be  granted,  390         168-174 

Section  2.  Cases  in  which  court  may  grant  relief,  . .        391         175-181 
Section  3.  Existing  laws   authorizing   sales   of   real 
estate,  and  existing  powers  to  do  any 
acts  enumerated  in  section  one,  not  im- 
paired         392  182 

Section  4.  Petition,  citation,  and  notice 183 

Section  5.  Who  shall  execute  decrees,  393  184 

Section  6.  Appointment  of  trustee  to  make  sale  and 
invest  proceeds  where  minors  have  re- 
mainder interests,  185 

Section  7.  Effects  of  decree,  186 

Section  8.  Title  transferred 187 

Section  9.  Payment  or  foreclosure  of  mortgage, 394  188 

Section  10.  Purchase-  or  mortgage-money,  et  cetera, 
how  held  and  applied ;  maintenance  and 

education   of   minors,    189 

Section  u.  Application   of   moneys   to    payment   of 

liens  or  improvement  of  real  estate,   . .         395  190 
Section  12.  Appointment  of  master  to  report  on  ex- 
pediency of  granting  application,  191 

98 


REVISED  PRICE  ACT— CONTENTS— TITLE 


99 


1917 
Pamphlet 

Laws 
Section  13.  Bond  of  person  or  corporation  carrying 

out   decree,    

Section  14.  Notice  of  public  sales,   396 

Section  15.  Securing     unpaid     purchase-money     by 

mortgage,    

Section  16.  Acknowledgment    of    deeds,    mortgages, 

and  leases,   

Section  17.  Effect  of  death,  removal,  disqualification, 
or  irregularity  in  appointment,  of  fidu- 
ciary designated  to  carry  out  decree,  . . 

(a)  Where    only    one    fiduciary;     conveyance 

or  mortgage,   

(b)  Where  joint   fiduciaries;    conveyance  or 

mortgage,    397 

(c)  Where  sale  has  not  been  effected,  

(d)  Effect  of  sale,  conveyance,  or  mortgage,.. 

(e)  Title    of    purchaser    or    mortgagee    not 

affected  by  revocation  of  letters  or  re- 
moval of  fiduciary  after  sale  or  mort- 
gage made,  

(f)  Irregularity  or  defect  in  original  appoint- 

ment of  fiduciary  not  to  affect  title  of 
purchaser  or  mortgagee,  398 

Section  18.  Sale  or  mortgage  to  the  fiduciary, 

Section  19.  Real  estate  in  the  same  or  different 
counties,  

(a)  Where  real  estate  wholly  in  one  county, 

(b)  Where  real  estate  divided  by  the  county 

line, 

Section  20.  Private    sales,    399 

(a)  Power  to  authorize  or  direct,   

(b)  Objections  to  sales,  

Section  21.  Return  and  confirmation  of  sales,  

Section  22.  Discharge  of  liens,    

Section  23.  No   obligation   to   see  to  application   of 

purchase-money,   

Section  24.  Appeals,    400 

Section  25.  Short  title  section,   

Section  26.  Repealer,    400-3 


167.    TITLE. 


Section 

Number 

Herein 

192 
193 

194 
195 

196 
196 

197 
198 
199 


200 


2OI 
202 

203 

203 

204 
205 
205 
206 

207 

208 

209 

2IO 
211 
212 


AN  ACT 


Relating  to  the  jurisdiction,  poweis  and  procedure  of  the  or- 
phans' court  and  the  court  of  common  pleas  as  to  sales,  mort- 
gages, conveyances  on  ground  rents,  leases,  extinguishment  of 


100  REVISED  PRICE  ACT— TITLE 

ground  rents,  partition,  exchange,  squaring  and  adjusting  of  lines 
between  adjoining  owners,  consolidation  and  combination  of  min- 
ing lands  and  the  leasing  thereof,  the  joining  by  owners  of  un- 
divided interests  in  making  and  taking  conveyances  in  order  to 
change  the  route  or  location  of  any  right  of  way  or  passage  over 
adjoining  or  other  lands,  and  the  subdivison  of  premises  so  as  to 
command  the  highest  price  or  greatest  rents,  and,  for  such  pur- 
pose, the  laying  out  or  dedication  of  roads,  streets,  and  alleys  or 
the  vacation  of  such  as  have  not  been  accepted  by  the  public 
authorities,  where  the  court  shall  be  of  opinion  that  such  decree 
will  be  to  the  interest  and  advantage  of  all  those  interested,  and 
where  the  legal  title  is  held  by  minors,  lunatics,  habitual  drunkards 
or  weak-minded  persons,  a  married  person  whose  spouse  is  a 
lunatic  or  has  abandoned  him  or  her  for  one  year  or  has  been 
absent  and  unheard  of  for  seven  years,  by  corporations  having 
no  capacity  to  convey  or  by  any  unincorporated  association,  by 
any  religious,  beneficial  or  charitable  society  or  association  in- 
corporated or  unincorporated,  and  the  title  is  subject  to  forfeiture 
if  real  estate  is  held  in  excess  of  the  amount  prescribed  by  its 
charter  or  by  law,  by  a  corporation  or  individual  or  individuals 
and  is  subject  to  a  trust  of  any  description  whatever,  by  any 
person  as  to  whom  a  presumption  of  death  may  have  arisen,  or 
any  interest  wherein  is  held  by  any  person  under  legal  disability 
to  dispose  thereof ;  where  the  legal  title  is  an  estate  tail  or  is 
subject  to  the  lien  of  debts  of  a  decedent  not  of  record,  con- 
tingent remainders,  executory  devises,  or  remainders  to  a  class, 
some  or  all  of  whom  may  not  be  in  being  or  ascertained ;  where 
estates  shall  have  been  devised  or  granted  for  special  or  limited 
purposes,  where  there  is  a  power  of  sale  but  the  time  may  not 
have  arrived  for  its  exercise,  any  preliminary  act  may  not  have 
been  done  to  bring  it  into  exercise,  the  time  limited  for  its  exer- 
cise may  have  expired,  or  any  one  or  more  persons  required  to 
consent  or  join  in  its  exercise  may  be  non  compos  mentis,  have 
removed  out  of  the  state,  have  died,  refuse  to  act,  unreasonably 
withhold  consent  or  be  absent  and  unheard  of ;  where  there  has 
been  or  shall  be  a  defective  appointment  in  any  deed  or  will  and 
the  necessary  power  is  not  given  to  the  executor,  devisee  or  ap- 
pointee to  make  sale  and  conveyance;  where  a  trust  has  been 
created  and  no  power  conferred  on  the  trustee  to  do  any  of  the 
acts  which  the  court  is  hereby  empowered  to  authorize  or  con- 
firm; and  to  the  effects  of  such  decrees. 


REVISED  PRICE  ACT— SECTION  i  IQI 

NOTE. — This  act  is,  in  substance,  a  revision  of  the  Price  Act  of  April  18, 
!853,  P.  L.  503,  with  its  supplements.  The  Commissioners  acknowledge 
their  indebtedness  to  Roland  R.  Foulke,  Esq.,  of  the  Philadelphia  Bar,  for 
valuable  assistance  in  the  drafting  of  the  act. 

168.     WHAT  RELIEF  MAY  BE  GRANTED. 

SECTION  i.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  Commonwealth  of  Pennsylvania  in  General 
Assembly  met,  and  it  is  hereby  enacted  by  the  authority  of  the 
same,  That  the  orphans'  court,  in  all  cases  where  real  estate,  or 
a  ground  rent  issuing  thereout,1  shall  be  or  shall  have  been  ac- 
quired by  descent  or  last  will,  partly  by  deed  and  partly  by  descent 
or  last  will,2  or  by  purchase3  by  a  trustee,  executor  or  guardian, 
and  in  all  other  cases  the  court  of  common  pleas  of  each  county 
of  this  commonwealth,  shall  have  jurisdiction  with  respect  to  real 
estate  situate  within  the  county,  and,  in  the  cases  hereinafter 
specified,  to  authorize4  or  confirm5 : — 

NOTE. — This  is  derived  from  Section  i  of  the  Price  Act,  4  Purd.  3999, 
and  supplements  as  noted  below.  It  has  been  divided  into  clauses  for  the 
sake  of  clearness  and  convenience  of  reference. 

The  following  clauses  are  recommended  for  omission : 

(1)  Purchase  of  other  real   estate  when  needful    (adjoining)    to  that 
already  owned  by  such  party,  or  useful  to  the  business  thereon  carried  on 
or  when  necessary  to  protect  any  security  or  rent  on  property  exposed  to 
judicial   sale.      Provided   that   no   corporation    shall   be   so   authorized   to 
purchase  beyond  its  charter  license. 

(2)  Every  power  to  sell  in  fee  simple  real  estate  created  by  deed  or 
will    shall    be   taken   to   confer   authority   to    sell   and   convey,    reserving 
ground  rents  or  rents  in   fee,  and  the  same  to  release  and  extinguish, 
according  to  law. 


words  "or  a  ground  rent  issuing  thereout"  are  added  to  make  clear 
that  the  jurisdiction  extends  to  ground  rents  purchased,  etc. 

2These  words  incorporate  the  provisions  of  the  supplement  of  April  27, 

1855,  P.  L.  368,  Section  5,  4  Purd.- 4031.    The  confirmatory  act  of  April  21, 

1856,  P.  L,.  486,  Section  i,  4  Purd.  4034,  may  be  omitted. 

3The  words  "by  purchase  by  a  trustee,  executor  or  guardian"  are  in- 
serted to  make  clear  that  the  jurisdiction  of  the  orphans'  court  refers 
to  these  cases,  and  dissipate  any  idea  that  the  jurisdiction  under  the  pre- 
vious words  is  conferred  only  where  the  title  has  been  acquired  by  gift 
under  a  will  or  deed. 

4The  cases  in  which  the  court  may  act  come  first  in  the  Price  Act. 
The  proposed  revision  first  collects  together  from  the  act  and  the  sup- 
plements the  various  dispositions  authorized.  The  advantages  are  that 
these  are  all  brought  together  and  it  is  made  clear  that  the  court  may 
make  any  of  the  dispositions  in  any  of  the  cases  where  jurisdiction  is 
conferred. 


102  REVISED  PRICE  ACT— SECTION  i  (o) 

6"Confirm."  This  word  incorporates  the  provisions  of  the  Act  of  April 
13,  1854,  P.  L.  368,  Section  3,  4  Purd.  4030. 

See  Behringer's  Est.,  265  Pa.  in;    108  Atl.  414. 

This  act  does  not  authorize  the  orphans'  court  or  confer  jurisdiction 
thereon  to  ratify  sales  and  exchanges  of  real  estate  under  a  trust  created 
by  deed.  The  word  "trustee"  used  in  connection  with  the  words  "exec- 
utor or  guardian"  clearly  indicate  that  the  trustee  contemplated  therein 
is  of  a  testamentary  character  or  of  one  appointed  by  the  orphans' 
court  on  connection  with  a  decedent's  estate,  and  that  it  was  not  intended 
that  jurisdiction  should  be  conferred  upon  the  orphans'  court  in  case 
of  a  trust  inter  irivos  or  a  trust  of  any  other  kind  than  testamentary  in 
character  so  that  a  proceeding  in  the  orphans'  court  for  the  sale  or  ex- 
change of  lands  by  a  trustee,  who  holds  under  a  deed  of  trust,  will  not 
confer  marketable  title.  Garrison's  Est.,  65  P.  L.  *J-  77&. 

A  trustee  appointed  in  another  state  to  execute  a  trust  created  by  the 
will  of  a  decedent,  domiciled  in  that  state,  there  being  no  power  or  direc- 
tion to  sell  contained  in  the  will,  will  not  be  authorized  by  an  orphans' 
court  of  Pennsylvania  either  under  this  act  or  the  Fiduciaries  Act  to 
sell  real  estate  in  this  state.  Jones'  Est.  47  Pa.  C.  C.  463,  28  Dist.  282. 

While  under  the  act  the  court  undoubtedly  has  power  to  confirm  a 
sale  which  it  could  have  authorized,  yet  it  cannot  allow  a  sale  not  author- 
ized by  the  act,  where  by  will  testator  gave  the  real  estate  to  his  wife  for 
life  with  remainder  to  his  children,  whose  guardian,  the  petitioner,  had  no 
status  with  relation  to  the  real  estate.  A  mere  averment  that  the  sale 
would  be  for  the  "best  interest  and  advantage  of  the  children  of  which 
the  petitioner  is  guardian"  cannot  confer  jurisdiction.  Maule's  Est.,  37 
Lane.  231. 

Where  it  is  to  the  interest  and  advantage  of  the  parties  interested  the 
court,  under  this  act,  has  authority  to  decree  a  sale  of  decedent's  real 
estate  against  the  objections  of  some  of  the  living  owners  who  are  sui 
juris.  Jefferies'  Est.,  37  Lane.  435. 

Under  this  act  the  court  of  common  pleas  has  jurisdiction  to  entertain 
the  petition  of  trustees  of  a  church  to  borrow  money,  where  due  notice 
of  such  application  has  been  given.  In  re  St.  Joseph's  Church,  49  Pa.  C. 
C.  315,  16  Sch.  327. 

169.     SALES  OF  REAL  ESTATE,  ETC. 

(a)  The  sale,  mortgaging,  conveying  on  ground  rent,  and  leas- 
ing thereof,  of  the  extinguishment  or  assignment  of  ground  rents 
issuing  thereout; 

The  words  "extinguishment  or  assignment  of  ground  rents"  are  in- 
serted to  make  clear  that  the  court  has  jurisdiction  to  direct  the  extin- 
guishment or  assignment  of  a  ground  rent,  as  to  which  there  is  now  some 
doubt. 

There  is  no  need  for  a  petition  by  a  trustee  to  extinguish  a  ground 
rent,  where  from  the  facts  involved  there  is  no  room  for  the  exercise  of 


REVISED  PRICE  ACT— SECTION  i  (a),  (6),  (c),  (d),  (e)      103 

discretion  by  the  court  and  its  function  would  become  purely  ministerial. 
The  Revised  Price  Act  makes  no  change  that  affects  the  case.  The  words 
"extinguishment  or  assignment  of  ground  rents"  were  added  to  remove 
a  doubt  that  had  arisen  in  the  profession  and  make  it  clear  that  the  court 
might  decree  an  extinguishment  as  well  as  a  sale  or  assignment  of  a 
ground  rent  in  cases  where  the  court  is  given  jurisdiction  under  the 
provisions  of  the  act.  Janney's  Est.,  27  Dist.  709. 

170.  AMICABLE  PARTITION,  ETC. 

(&)  The  amicable  partition  and  exchange  thereof; 
In  the   Price  Act,   Section   I,  and  incorporating  act  of  May  23,   1913, 
P.  L.  345,  6  Purd.  7051,  in  connection  with  the  clauses  in  the  next  section 
conferring  jurisdiction  where  the  legal  title  is  held  by  persons  under  dis- 
ability, fiduciaries,  etc. 

171.  SQUARING  AND  ADJUSTING  LINES. 

(c)  The  squaring  and  adjusting  of  lines  between  adjoining 
owners ; 

Taken  from  Section  7  of  the  Price  Act,  4  Purd.  4027.  The  words 
"without  public  or  private  sale"  are  recommended  for  omission,  as  the 
words  "squaring  and  adjusting"  sufficiently  describe  the  transaction  and 
necessarily  exclude  the  idea  of  a  sale. 

172.  CONSOLIDATION  OF  MINING  LANDS. 

(d)  The  consolidation  and  combination  of  mining  lands  with 
other  adjoining  mining  lands,  so  that  they  shall  form  one  tract, 
and  the  leasing  thereof  in  such  manner  that  the  several  persons 
interested  therein  shall  be  seized  of  undivided  interests  in  the 
whole,  proportionate  to  their  several  undivided  interests  before 
such  combination  and  consolidation,  the  rents  or  royalties  received 
under  the  lease  to  be  apportioned  among  them  in  like  propor- 
tions. 

This  incorporates  the  Act  of  June  8,  1874,  P-  L.  277,  Section  I,  4  Purd. 
4033. 

173.  RIGHTS  OF  WAY. 

(e)  The  joining  by  owners  of  undivided  interests  in  making 
and  taking  conveyances,  in  order  to  change  in  part  or  in  whole 
the  route  or  location  of  any  right  of  way  or  passage  existing  over 
and  upon  adjoining  or  other  lands 

This  incorporates  the  Act  of  April  18,  1864,  P.  L.  462,  Section  i,  4 
Purd.  4031.  The  words  "without  public  or  private  sale"  are  recommended 
for  omission  for  the  reason  set  forth  in  note  8,  supra. 


104  DEVISED  PRICE  ACT— SECTIONS  i  (/)-2 

174.  SUBDIVISION  OF  PREMISES;  DEDICATION  OF 

STREETS. 

(/)  The  subdivision  of  the  premises  so  as  to  command  the 
highest  price  or  greatest  rents,  and  for  such  purpose,  where  the 
premises  shall  admit  of  or  require  it,  the  laying  out  and  dedica- 
tion of  roads,  streets  and  alleys,  or  the  vacating  of  such  as  shall 
not  have  been  paid  for  or  received  into  actual  use  by  the  public, 
if  found  to  be  inconvenient  and  to  make  an  unprofitable  division 
of  the  property;11 

Provided,  That  such  court  shall  be  of  the  opinion  that  such 
decree  will  be  to  the  interest  and  advantage  of  all  those  interested 
therein  and  without  prejudice  to  any  trust,  charity  or  purpose 
for  which  the  real  estate  or  ground  rent  shall  be  held  and  with- 
out the  violation  of  any  law  which  may  confer  an  immunity  or 
exemption  from  sale  or  alienation. 

"Taken  from  Section  4  of  the  Price  Act,  4  Purd.  4022. 

It  is  necessary  in  order  for  the  court  to  reach  a  conclusion  that  a  decree 
will  be  to  the  interest  and  advantage  of  those  interested  "that  such  facts 
shall  be  set  out  in  the  petition  that  will  enable  the  court  to  form  an 
opinion,  such  as  the  rental  value  of  the  property  cost  of  maintenance  in 
the  way  of  repairs,  taxes,  water  rent  and  other  charges  and  such  other 
facts  as  to  dilapidation  and  decay,  if  any.  It  is  not  sufficient  to  say  in 
the  petition  that  it  is  to  the  interest  of  the  minor  that  the  sale  be  carried 
into  effect.  Such  a  statement  is  the  opinion  of  the  petitioner,  which  is, 
of  course,  of  value,  but  it  does  not  meet  the  requirements  of  the  court 
which  requires  that  the  court  shall  conclude  that  it  is  for  the  best  interest 
of  the  minor  that  the  sale  be  made ;  and  that  conclusion  can  only  be  based 
upon  facts  contained  in  the  petition,  or  by  the  taking  of  testimony  before 
an  auditor  or  the  court."  Scott's  Estate,  49  Pa.  C.  C.  295. 

A  petition  will  be  refused  which  does  not  disclose  the  name  of  the 
proposed  purchaser  and  is  silent  as  to  the  fact  that  the  sale  can  be  made 
without  prejudice  to  any  trust,  charity  or  purpose  for  which  the  real 
estate  shall  be  held  and  without  the  violation  of  any  law  which  may  confer 
an  immunity  or  exemption  from  sale  or  alienation.  Scott's  Est.,  49  Pa. 
C.  C.  295. 

175.  CASES  IN  WHICH  COURT  MAY  GRANT  RELIEF. 

SECTION  2.  The  several  courts  aforesaid  shall  exercise  the 
jurisdiction  conferred  by  Section  I  of  this  Act  in  all  cases: 

NOTE. — This  is  derived  from  Section  2  of  the  Price  Act,  amended  by  the 
Act  of  June  14,  1897,  P.  L.  144,  Section  I,  4  Purd.  4003. 
The  following  clauses  are  recommended  for  omission : 
Where  a  decedent  shall  have  contracted  by  parol  to  sell  real  estate,  and 
those  interested  do  not  think  it  expedient  to  plead  the  statute  requiring 


REVISED  PRICE  ACT— SECTION  2  (a)  105 

such  contracts  to  be  in  writing  to  enable  the  purchaser  to  recover  the  real 
estate  agreed  to  be  sold.  When  real  estate  shall  have  been  purchased  or 
any  ground  rent  reserved  and  be  held  by  any  person  acting  in  a  trust  of 
fiduciary  capacity.  Section  2  of  the  Price  Act. 

Whenever  in  proceedings  in  partition  in  equity  it  shall  appear  that  real 
estate  cannot  be  divided  without  prejudice  to  the  interests  of  the  owners. 
This  clause  is  recommended  for  omission  at  it  is  now  superflous  in  view 
of  the  provisions  of  the  Act  of  March  14,  1857,  P.  L.  97,  Section  3,  and 
the  later  statutes  relating  to  partition  in  equity.  See  Act  of  July  14,  1897, 
P.  L.  268,  3  Purd.  3417. 

176.    TITLE  IN  MINORS,  ETC. 

(a)  Where  the  legal  title  is  held:  (i)  By  minors,  lunatics  or 
habitual  drunkards,  so  duly  found  by  inquisition,  or  by  weak- 
minded  persons  for  whom  guardians  have  been  appointed.1  (2) 
*By  a  wife  whose  husband  is  a  minor,  or  by  a  married  minof 
whose  spouse  is  a  minor,  or  by  a  married  woman  or  married  man 
whose  spouse  is  a  lunatic,  or  has  abandoned  him  or  her  for  one 
year  or  has  been  absent  and  unheard  of  for  seven  years.2  (3) 
By  corporations  of  any  kind  having  no  capacity  to  convey  or  by 
any  unincorporated  association.3  (4)  By  any  religious,  beneficial 
or  charitable  society  or  association  incorporated  or  unincorporated, 
and  the  title  is  subject  to  forfeiture  if  real  estate  is  held  in  excess 
of  the  amount  prescribed  by  its  charter  or  now  or  hereafter  pre- 
scribed by  law.3  (5)  By  a  corporation  of  any  kind  or  individual 
or  individuals  and  is  subject  to  a  trust  of  any  description  what- 
ever.4 (6)  By  any  person  who  may  have  been  absent  and 
unheard  from  for  seven  years  under  those  circumstances  from 
which  the  law  would  presume  his  or  her  decease.5  (7)  Or  any 
interest  therein  is  held  by  any  person  under  legal  disability  to 
dispose  thereof.6 

xThe  words  "or  weak  minded  persons"  have  been  added;  but  it  is  not 
intended  that  the  provisions  of  Section  6  of  the  Act  of  May  28,  1907, 
P.  L.  292,  6  Purd.  6569,  should  be  repealed. 

2This  section  throws  together  and  makes  similar  the  provisions  as  to 
the  disability  of  the  spouse  of  a  married  man  or  a  married  woman.  The 
case  of  the  minority  of  the  wife  is  omitted  as  unnecessary  in  view  of  the 
Act  of  March  22,  1865,  P.  L.  30,  i  Purd.  1155.  In  providing  for  the  case 
of  a  woman  with  a  lunatic  husband,  this  section  incorporates  to  that 
extent,  the  ambiguous  Act  of  April  n,  1866,  P.  L.  780,  4  Purd.  4034,  which 
extends  only  to  the  common  pleas. 


*That  portion  of  clause   (2)   in  italics  was  added  by  the  amendatory 
Act  of  May  2,  1919,  (P.  L.  in). 


106  REVISED  PRICE  ACT— SECTION  2  (a)     . 

3Several  cases  are  to  be  provided  for  (a)  Corporations  having  no 
capacity  to  convey,  a  very  rare  case;  (&)  Unincorporated  societies,  etc., 
which  could  not  convey  at  law;  (c)  Incorporated  and  unincorporated  re- 
ligious societies,  etc.,  which  may  hold  real  estate  in  excess  of  the  amount 
prescribed  by  law.  The  words  of  the  Price  Act  are  "Where  real  estate 
shall  be  held  for  or  owned  by  *  *  *  religious,  beneficial  or  charitable 
societies  or  associations,  incorporated  or  unincorporated,"  which  words 
do  not  make  clear  just  what  the  exact  jurisdiction  conferred  is. 

4This  is  designed  to  cover  all  cases  of  trusts  and  make  unnecessary 
the  words  of  the  Price  Act  which  are  as  follows :  "When  real  estate 
shall  be  held  for  minors,  lunatics,  habitual  drunkards  so  declared  by 
inquisition  *  *  *  the  sole  and  separate  use  of  married  women,  for 
religious,  beneficial  or  charitable  societies  or  associations,  incorporated 
or  unincorporated,  or  for  any  other  corporation,  or  by  trustees  for  any 
public  or  private  use  or  trust,  and  generally  in  all  cases  where  estates 
have  been  or  shall  be  devised  or  granted  in  trust  or  for  special  or  limited 
purposes." 

6Taken  from  Price  Act,  no  change. 

«Taken  from  Price  Act. 

Title  held  under  a  declaration  of  trust  whereby  the  legal  owner  agrees 
to  convey  the  real  estate  "unto  any  person  or  persons  named  and  desig- 
nated" "upon  request  or  requests  made  to  us  in  writing"  by  the  equitable 
owner,  who  subsequently  died,  is  not  held  under  a  trust  contemplated  by 
clause  (5)  authorizing  the  court  to  act  where  property  is  "subject  to  a 
trust  of  any  description  whatever."  The  trust  here  is  passive.  All  pos- 
sible purposes  of  the  trust  ended  on  the  death  of  the  equitable  owner. 
Title  vested  in  her  heirs  or  devisees  whose  remedy  is  by  partition. 
Behringer's  Est.,  265  Pa.  in;  108  Atl.  414. 

Under  clauses  (3)  and  (4)  the  court  of  common  pleas  has  jurisdiction 
to  entertain  the  petition  of  the  trustees  of  a  church  to  borrow  money, 
where  proper  notice  of  such  application  has  been  given.  In  re  St.  Joseph's 
Church,  49  Pa.  C.  C.  315,  16  Sch.  327. 

Where  an  orphan  house  was  created  by  a  will,  whereunder  it  was  pro- 
vided that  no  part  of  the  estate  should  ever  be  sold  or  in  any  manner  be 
severed  from  the  orphan  house,  but  that  it  should  remain  united  thereto 
whole  and  undivided  forever,  but  the  testator  also  added  in  another  part 
of  his  will  "so  far  as  human  frailties  will  permit,"  the  court  decided 
on  a  petition  by  the  charitable  corporation,  trustee,  for  permission  to  lay 
out  in  lots  to  be  sold  at  public  sale  subject  to  ground  rent  a  certain  tract 
unimproved  and  unproductive  for  a  long  time,  yielding  insufficient  revenue 
to  pay  the  taxes,  after  due  notice  and  hearing  and  it  appearing  to  be  to  the 
best  interest  of  the  trust  estate  that,  under  the  above  section  of  the 
Revised  Price  Act  and  generally  from  the  intent  of  the  whole  act  itself 
said  petition  should  be  granted  and  in  so  holding  the  court  said : 

"In  Pennsylvania,  prior  to  1853,  such  matters  were  disposed  of  by  the 
Legislature.  In  that  year  the  power  was  placed  in  the  court  by  the  Price 
Act  (April  18,  1853,  P.  L.  503)  which,  in  the  preamble  provided: 

"  'Whereas,  The  general  welfare  requires  that  real  estate  should  be  freely 
alienable,  and  be  made  productive  to  the  living  owners  thereof.  And, 


REVISED  PRICE  ACT— SECTION  2  (a),  (&)  107 

whereas,  in  matters  which  the  judiciary  is  competent  to  hear  and  decide, 
it  is  expedient  that  the  courts  should  adjudicate  them  after  a  full  hearing 
of  all  parties  rather  than  that  they  should  be  determined  by  special 
legislative  acts  and  upon  ex  parte  hearing.' 

"This  authority  is  now  given  by  the  Revised  Price  Act  of  June  7,  1917, 
P.  L.  388. 

"Concerning  this  legislation,  it  was  said  by  Agnew,  J.,  in  Burton's 
App.  57  Pa.  213-219:  'The  design  is  well  expressed  in  the  preamble  of  the 
act,  to  make  real  estate  freely  alienable  and  productive  to  the  living  owners 
thereof.  Though  not  unmindful  of  the  future,  and  of  the  duty  owing  to 
posterity,  the  special  interests  of  society  belong  to  the  men  of  today, 
rather  than  to  those  of  another  generation.  The  intention  of  this  law  is 
manifestly  to  unite  the  cords  which  fetter  the  real  estate  of  the  common- 
wealth, whether  bound  around  it  by  the  disabilities  of  persons,  the  limita- 
tions of  contingent  interests,  or  by  restrictions  to  limited  uses  and  pur- 
poses, and  at  the  same  time  to  preserve  to  every  interest  its  proper  share 
in  the  result.  This  law  being  beneficent  and  remedial  is  not  to  be  so 
construed  as  to  defeat  its  main  intent." 

"After  considering  all  of  the  authorities  above  quoted,  we  are  of 
opinion  that  this  court  has  authority  under  the  Revised  Price  Act  of  1917, 
to  grant  the  prayer  of  this  petition,  and  it  is  so  ordered."  Frey's  Est., 
50  Pa.  C.  C.  468.  See  also  Myers  v.  Crick,  271  Pa.  399. 

177.     ESTATES  TAIL  AND  REMAINDERS. 

(&)  Where  the  legal  title  is  an  estate  tail  or  is  subject  to 
contingent  remainders,  executory  devises,  or  remainders  to  a 
class,  some  or  all  of  whom  may  not  be  in  being  or  ascertained  at 
the  time  of  the  entry  of  the  decree. 

In  this  clause  are  thrown  together  all  cases  of  legal  limitations  of  the 
title,  and  the  language  incorporates,  so  far  as  gifts  to  a  class  are  con- 
cerned, the  provisions  of  the  Acts  of  June  14,  1897,  P.  L.  144,  Sec.  i,  4 
Purd.  4003 ;  June  15,  1897,  P.  L.  159,  4  Purd.  4033.  The  Act  of  June  14 
provides  for  vested  remainders  which  are  liable  to  open  and  let  in  after- 
born  children.  The  Act  of  June  15  provides  for  "Lands  *  *  *  devised 
or  granted  for  life  or  for  the  life  of  another,  and  with  remainder  limited 
to  a  class  of  persons,  some  or  all  of  whom  may  not  be  in  being  at  the 
time  of  the  decree."  "The  entry  of  the  decree."  These  words  are  better 
English  than  the  words  "the  time  of  the  decree,"  which  were  probably 
sufficiently  plain.  The  words  "or  ascertained"  are  added  because  a  case 
may  occur  of  a  remainder  to  a  class  of  persons  in  being  but  not  ascer- 
tained, e.  g.  "remainder  to  the  children  of  my  daughter  living  at  the  time 
of  her  death."  The  children  born  are  in  being  but  not  ascertained  as  the 
ones  who  will  take  at  the  death  of  the  daughter. 

The  words  "the  lien  of  debts  of  a  decedent  not  of  record"  are  omitted 
in  line  2,  this  provision  seeming  to  be  unnecessary  since  the  lien  has  been 
reduced  by  the  Fiduciaries  Act  to  one  year  (see  418  infra}. 

See  Patterson  v.  Reed,  260  Pa.  319,  103  Atl.    735. 


log        REVISED  PRICE  ACT— SECTION  2  (c),   (rf),   (*).,   (/) 

178.  ESTATES  FOR  SPECIAL  PURPOSE. 

(c)  In  all  cases  where  estates  shall  have  been  devised  or 
granted  for  special  or  limited  purposes. 

These  words  may  appear  to  be  superfluous,  but  it  is  thought  best  to 
retain  them. 

179.  INCOMPLETE  POWER  OF  SALE. 

(rf)  Where  there  is  a  power  of  sale  but  (i)  the  time  may  not 
have  arrived  for  its  exercise,  (2)  any  preliminary  act  may  not 
have  been  done  to  bring  it  into  exercise,  (3)  the  time  limited  for 
its  exercise  may  have  expired,  (4)  any  one  or  more  persons 
required  to  consent  or  join  in  its  exercise  may  be  a  minor,  non 
compos  mentis,  removed  out  of  the  state,  have  died,  refuse  to 
act,  unreasonably  withhold  consent,  or  be  absent  and  unheard  of. 

Taken  from  the  Price  Act.  The  words  "be  absent  and  unheard  of" 
are  added.  The  words  "a  minor"  are  inserted  to  give,  in  cases  under 
this  Act,  the  power  conferred  by  Section  15  of  the  Act  of  July  27,  1842, 
P.  L.  439,  4  Purd.  4885,  upon  the  common  pleas. 

Where  petitioner,  surviving  trustee  under  a  declaration  of  trust,  has 
no  "power  of  sale"  but  only  an  obligation  "to  convey  the  real  estate 
described — upon  request  or  requests  made — in  writing,"  she  has  no  dis- 
cretion in  the  matter  and  her  duty  is  to  obey  the  wish  or  whim  of  the  real 
owners,  whether  she  believes  it  to  be  wise  or  otherwise,  provided  only  it 
is  expressed  "in  writing."  Such  a  matter  is  not  within  the  contemplation 
of  this  section  of  the  Act.  The  trust  is  passive  and  title  vested  in  the 
equitable  owners.  Behringer's  Est.,  265  Pa.  in,  108  Atl.  414. 

180.  DEFECTIVE  APPOINTMENT. 

(0)  Where  there  has  been  or  shall  be  a  defective  appointment 
in  any  deed  or  will  and  the  necessary  power  is  not  given  to  the 
executor,  devisee  or  appointee  to  make  sale  and  conveyance  of 
real  estate. 

Taken  from  Section  2  of  the  Price  Act. 

181.  TRUST  WITHOUT  POWER  OF  SALE. 

(/)  Where  a  trust  has  been  created  and  no  power  conferred 
on  the  trustee  to  do  any  of  the  acts  which  the  court  is  em- 
powered to  authorize  or  confirm  under  the  provisions  of  Section 
i  hereof.11 

Such  jurisdiction  may  be  exercised  whether  the  ownership  or 
interest  in  real  estate  be  held  in  severally,  joint  tenancy  or  ten- 


REVISED  PRICE  ACT— SECTIONS  2  (/)-3-4  109 

ancy  in  common,  or  by  husband  and  wife  as  tenants  by  entire- 
ties.12 

"Added  because  the  case  where  a  trustee  has  no  power  of  sale  is  not 
expressly  covered  by  the  Price  Act. 

12The  word  "coparceny"  in  the  original  act  is  omitted,  as  this  tenancy  is 
unknown  in  Pennsylvania. 

This  clause  relates  only  "to  a  trust  which  is  valid  and  subsisting  at  the 
time  relief  is  sought  and  not  to  one  which  is  purely  passive,  or  having 
once  been  active  has  ceased  and  determined."  Hence,  title  held  under  a 
declaration  of  trust  whereby  the  legal  owner  agrees  to  convey  the  real 
estate  "unto  any  person  or  persons  named  and  designated — upon  request 
or  requests — made — in  writing"  by  the  equitable  owner,  who  subsequently 
died,  is  not  held  under  a  trust  contemplated  by  this  section.  The  trust 
here  is  passive.  All  possible  purposes  of  the  trust  ended  on  the  death  of 
the  equitable  owner  and  title  then  vested  in  her  heirs  or  devisees  whose 
remedy  is  by  partition.  Behringer's  Est.,  265  Pa.  in,  108  Atl.  414.  See 
also  Myers  v.  Crick,  271  Pa.  399. 

182.  EXISTING  LAWS  NOT  IMPAIRED. 

SECTION  3.  Nothing  herein  contained  shall  be  taken  to  repeal 
or  impair  the  authority  of  any  act  of  assembly,  general  or 
private,  authorizing  the  sale  of  real  estate  by  decree  of  court  or 
otherwise,  nor  to  affect  or  impair  any  rights  or  powers,  otherwise 
existing  in  any  person  or  corporation  to  do  any  of  the  acts  which 
the  court  is  empowered  to  authorize  or  confirm  under  the  pro- 
visions of  Section  I  of  this  Act. 

NOTE. — This  is  derived  from  Section  2  of  the  Price  Act,  amended  by 
Act  of  June  14,  1897,  P.  L.  144,  4  Purd.  4003,  4016. 

183.  PETITION  CITATION  AND  NOTICE. 

SECTION  4.  All  jurisdiction  conferred  by  this  act  on  the  or- 
phans' court  or  the  court  of  common  pleas  shall  be  exercised 
on  the  petition  of  any  party  in  interest  supported  by  oath  or 
affirmation;  and  if  all  proper  parties  shall  not  voluntarily  appear 
as  petitioners  or  respondents,  the  court  shall  fix  a  day  for  them 
to  appear  and  cause  a  citation  to  be  served  on  all  persons  in 
being  who  shall  not  have  appeared,  and  who  shall  have  any 
present  or  expectant  interest  in  the  premises,  warning  them  to 
appear,  and  that  they  shall  be  heard  on  the  day  designated,  and 
for  those  who  cannot  otherwise  be  served,  cause  advertisement 
to  be  made  in  manner  most  likely  to  afford  notice,  and  service 
made  in  any  part  of  the  United  States  and  the  territories  and 
possessions  thereof,  or  elsewhere,  with  oath  or  affirmation  of  the 


1 10  REVISED  PRICE  ACT— SECTIONS  4-5-6 

fact,  taken  before  any  judge  or  justice  of  the  peace  or  notary 
public,  or  any  person  authorized  by  the  laws  of  the  United  States 
to  take  oaths  or  affirmations  in  foreign  countries,  and  filed  of 
record,  shall  be  good  service.  Service  having  been  made  as 
aforesaid,  the  court  shall,  on  the  day  fixed,  make  such  decree  as 
shall  be  proper  in  the  premises.  Guardians  shall  be  notified"  and 
appear  for  their  wards;  and  if  minors  have  no  guardian,  the 
court  may  appoint  one  for  them  in  the  manner  now  or  hereafter 
prescribed  by  law  for  the  appointment  of  guardians,  and  such 
appointment  may  be  made  on  the  petition  of  any  party  interested 
with  notice  to  the  persons  who  shall  by  law  be  charged  with  the 
duty  of  petitioning  for  the  appointment  of  a  guardian.  Commit- 
tees and  guardians  shall  be  notified  and  appear  for  lunatics,  habit- 
ual drunkards  and  weak-minded  persons,  and  in  each  of  such  cases 
notice  shall  be  given  to  the  next  of  kin.  Trustees  shall  be  notified 
and  appear  for  the  cestuis  que  trust,  provided  that  cestuis  que  trust 
of  age  and  sound  mind,  having  vested  interests  or  interests  subject 
to  a  condition  precedent,  shall  also  be  notified,  and  all  cestuis  que 
trust  not  in  being  or  unascertained  shall  be  represented  by  the 
trustees  aforesaid. 

NOTE. — This  is  founded  on  Section  3  of  the  Price  Act,  4  Purd.,  4017, 
and  has  been  extended  to  include  parties  in  interest  in  foreign  countries 
or  to  authorize  service  in  foreign  countries. 

See  forms  58  to  66.  See  Act  of  July  u,  1917,  (P.  L.  790)  Sees.  624-5 
infra. 

184.  WHO  SHALL  EXECUTE  DECREE. 

SECTION  5.  In  all  cases  where,  under  the  provisions  of  this 
Act,  sales,  mortgages,  leases,  or  conveyances  on  ground  rent  shall 
be  authorized  or  directed,  the  same  shall  be  made  by  executors, 
administrators,  guardians,  trustees,  committees  or  owners  having 
a  present  vested  interest,  or  trustees  appointed  for  the  purpose, 
as  the  court  may  order. 

NOTE. — This  is  founded  on  a  part  of  Section  4  of  the  Price  Act,  4  Purd. 
4019,  with  the  addition  of  the  provision  as  to  trustees  appointed  for  the 
purpose. 

185.  APPOINTMENT  OF  TRUSTEES  TO  MAKE  SALE 

AND   INVEST   PROCEEDS   WHERE   MINORS 
HAVE  REMAINDER  INTERESTS. 

SECTION  6.  Where  lands  and  tenements  are  held  by  will  or 
otherwise,  for  life  or  pur  autre  vie,  by  any  person  or  persons, 


REVISED  PRICE  ACT— SECTIONS  6-7  m 

with  remainder  to  any  minor  or  minors,  and  it  shall  appear  to  the 
court  of  the  proper  county,  that  it  would  be  to  the  interests  of 
such  minor  or  minors  that  the  same  should  be  sold,  in  every  such 
case  upon  the  application  of  the  tenant  or  tenants  for  life,  or 
pur  autre  vie,  as  the  case  may  be,  the  said  court  shall  appoint  a 
trustee  to  make  sale  of  said  lands;  and  the  said  trustee  shall 
receive  and  hold  the  proceeds  of  such  sale  in  trust  for  the  parties 
in  interest  therein,  and  shall  invest  the  same  in  investments 
authorized  by  law,  and  shall  pay  the  interest  thereof,  as  it  shall 
accrue,  to  the  tenants  for  life,  or  pur  autre  vie,  until  the  estate  for 
life,  or  pur  autre  vie,  shall  have  terminated,  and  shall  then  pay 
over  the  principal  sum  to  the  person  or  persons  entitled  to  such 
remainder. 

NOTE.— This  is  Clause  II  of  Section  i  of  the  Act  of  April  3,  1851,  P.  L. 
305,  I  Purd.  1119,  altered  by  substituting  "invest  the  same  in  investments 
authorized  by  law"  for  ''loan  the  same  upon  good  real  estate  security, 
upon  bond  and  mortgage,"  and  by  omitting  the  word  "orphans' "  in  the 
fourth  line,  and  the  reference  to  confirmation  of  the  sale. 

The  remainder  of  Section  i,  and  Sections  2,  3  and  4  of  the  Act  of 
1851  are  recommended  for  repeal  as  being  sufficiently  covered  by  other 
sections  of  the  present  draft. 

See  form  67. 

186.    EFFECTS  OF  DECREE. 

SECTION  7.  Every  such  decree  made  by  the  court  shall  have 
the  effect  as  to  the  title  authorized  to  be  transferred  (a)  Of  a 
common  recovery  to  bar  an  estate  tail  or  a  remainder,  whether 
contingent  or  to  a  class.  (&)  Of  barring  executory  devises,  (c) 
Of  defeating  the  right  of  the  commonwealth  to  forfeit  real  estate 
that  may  have  been  held  by  or  for  any  corporation  in  excess  of 
the  amount  now  or  hereafter  duly  authorized  by  law,  only,  how- 
ever, in  the  case  where  no  proceedings  to  procure  a  forfeiture 
shall  have  been  commenced  before  the  filing  of  the  petition,  (rf) 
Of  discharging  the  lien  of  decedents'  debts  not  of  record.  In 
all  cases  where  the  proceedings  shall  be  for  the  purpose  of  freeing 
the  title  of  any  of  the  limitations  or  def  easibility  described  in  this 
section,  that  purpose  shall  be  set  forth  in  the  petition  in  addition 
to  the  explanation  of  the  title. 

NOTE. — This  is  derived  from  Sections  5  and  6  of  the  Price  Act,  4  Purd. 
4024-5.  The  jurisdiction  to  sell  for  the  purpose  of  discharging  the  lien 
of  debts  not  of  record  is  omitted  above  as  unnecessary,  but  this  does  not 
prevent  the  discharge  of  such  liens  by  a  sale  under  the  Act,  In  the 


112  REVISED  PRICE  ACT— SECTIONS  7-8-9 

last  sentence,  "or  liens"  is  omitted  after  "limitations,"  and  "ordefeasibility" 
substituted. 

187.  TITLE  TRANSFERRED. 

SECTION  8.  The  title  transferred  in  pursuance  of  any  such 
decree  of  the  court  shall  be  such  as  is  authorized  in  the  decree, 
which  title  shall  be  indefeasible  by  any  person  ascertained  or 
unascertained  or  any  class  of  persons  mentioned  in  the  petition 
or  decree  and  having  a  present  or  expectant  interest  in  the 
premises  and  shall  be  unprejudiced  by  any  error  in  the  proceed- 
ings-of  the  court,  and  where  security  shall  be  entered  in  accord- 
ance with  the  provisions  hereof,  no  party  who  shall  pay  over 
money  in  pursuance  of  the  decree  of  the  court  shall  be  liable  to 
see  to  the  application  thereof,  or  be  in  any  manner  liable  for  or 
affected  by  any  lien  of  debts  of  a  decedent  not  of  record,  or  by 
any  trust,  limitation  of,  or  defects  in  the  title  set  out  in  the 
petition  or  decree  in  pursuance  of  which  the  money  is  paid  over. 

NOTE. — This  is  derived  from  Section  5  of  the  Price  Act,  4  Purd.  4023. 

188.  PAYMENT  OR  FORECLOSURE  OF  MORTGAGE. 

SECTION  9.  In  all  cases  where  the  court  shall  authorize  or 
confirm  the  making  of  a  mortgage,  in  any  of  the  cases  provided 
for  in  this  Act,  the  title  shall  upon  the  mortgage  being  duly  paid 
and  satisfied  of  record  revert  to  its  former  condition,  except  that 
nothing  herein  contained  shall  operate  to  extend  the  lien  of  the 
debts  of  a  decedent  not  of  record  beyond  the  time  now  or  here- 
after allowed  by  law,  and  upon  legal  proceedings  being  brought 
upon  the  mortgage  or  bond  accompanying  the  same  as  may  now 
or  hereafter  be  provided  by  law  and  the  title  being  sold  at  sheriff's 
sale,  in  pursuance  of  such  proceedings,  the  surplus  proceeds  of 
the  sale,  if  any,  after  paying  the  mortgage,  with  interest  and  all 
costs,  and  liens,  which  may  by  law  be  payable  out  of  the  fund, 
shall  be  paid  over  to  the  party  who  made  the  mortgage,  or  such 
other  person  as  the  court  may  direct  or  appoint  for  that  purpose, 
to  be  held  by  him  as  part  of  the  mortgage  money  and  subject 
to  the  same  liens  or  limitations,  provided  that  the  sheriff  shall  not 
pay  over  any  such  sum  until  such  additional  bond  shall  be  filed 
as  the  orphans'  court  may  require  under  the  circumstances  of 
the  case. 

NOTE. — This  is  a  new  section,  covering  matters  not  provided  for  in  the 
Price  Act. 

See  Myers  v.  Crick,  271  Pa.  399, 


REVISED  PRICE  ACT— SECTION  10  113 

189.  PURCHASE  OR  MORTGAGE  MONEY,  ETC.— 
HOW  HELD  AND  APPLIED;  MAINTENANCE 
AND  EDUCATION  OF  MINORS. 

SECTION  10.  The  purchase  money,  mortgage  money,  ground  or 
other  rents  reserved  or  the  title  received  in  the  case  of  an  ex- 
change or  partition,  for  the  title  subject  to  a  lien  or  limitation, 
shall  be  held  for  and  applied  to  the  use  and  benefit  of  the  same 
persons  and  for  the  same  interests,  legal  or  equitable,  present  or 
future,  vested,  contingent  or  executory  as  the  title  so  sold,  mort- 
gaged, conveyed  on  ground  rent,  let,  partitioned  or  exchanged 
had  been  subject  or  held  excepting  only  the  case  of  an  estate  tail 
or  the  title  of  a  corporation  subject  to  forfeiture  which  in  each 
case  shall  by  the  proceedings,  without  the  necessity  of  a  bond 
being  filed  by  either  the  corporation  or  the  tenant  in  tail,  be  con- 
verted into  an  absolute  estate  in  fee-simple  and  all  remainders, 
whether  contingent  or  to  a  class,  executory  devises,  and  debts  of  a 
decedent  not  of  record  shall  be  transferred  to  the  fund  or  title 
raised  by  the  proceedings  in  pursuance  of  the  decree,  as  to  which 
fund  or  title  they  shall  take  effect  in  like  manner  as  they  would 
have  taken  effect  as  to  the  title  transferred  under  the  decree. 
The  court  shall  make  such  order  or  orders  from  time  to  time  as 
to  the  distribution  or  investment  of  such  funds  as  may  be  requisite 
to  protect  the  interest  of  all  persons  who  are  or  may  become 
entitled  thereto  or  to  any  part  thereof.  In  every  case  of  a  sale, 
mortgage,  lease  or  conveyance  on  ground  rent  under  the  pro- 
visions hereof,  the  purchase  money,  mortgage  money,  ground 
rent  or  other  rents  reserved  shall  nevertheless  have  and  retain 
the  quality  of  real  estate  as  respects  the  devolution  under  the 
intestate  laws  of  the  interest  of  any  infant,  lunatic,  or  person 
non  compos  mentis  as  whose  property  the  land  was  sold,  mort- 
gaged, leased  or  conveyed  on  ground  rent.  The  court  having 
jurisdiction  may  direct  the  application  of  such  proceeds  or  part 
thereof  for  the  maintenance  and  education  of  minor  parties  whose 
personal  estate  shall  be  insufficient  for  such  purposes,  or  gen- 
erally for  the  maintenance  or  education  of  parties  having  the  like 
interests  vested  or  expectant,  provided  such  moneys  can  be  equally 
and  equitably  so  applied  and  without  diminution  of  the  capital 
that  may  of  right  become  the  property  of  parties  having  unbarred 
interests  or  title  in  remainder,  or  by  executory  devise. 

NOTE. — This  is  derived  from  Section  6  of  the  Price  Act,  4  Purd.  4025, 
and  Section  2  of  the  Act  of  June  15,  1897,  P.  L.  159,  4  Purd.  4033. 

8 


H4  REVISED  PRICE  ACT— SECTIONS  11-12-13 

190.  APPLICATION  OF  MONEYS  TO  PAYMENT  OF 

LIENS    OR    IMPROVEMENT    OF    REAL    ES- 
TATE. 

SECTION  ii.  No  principal  moneys  raised  by  sale  or  mortgage, 
MS  aforesaid,  shall  be  expended  for  any  other  purpose  than  for 
the  payment  of  liens  upon  or  the  improvement  of  the  same  real 
estate  when  mortgaged,  or  other  real  estate  when  held  for  the 
same  uses  and  persons,  except  as  provided  in  Section  10  of  this 
Act;  and  it  shall  be  the  duty  of  the  court  to  decree  the  proper 
application  of  all  purchase  moneys  and  rents,  with  the  aid  of  an 
auditor  when  deemed  necessary,  to  the  discharge  of  liens  and  to 
parties  interested,  as  and  when  they  may  be  entitled. 

NOTE. — This  is  part  of  the  proviso  to  Section  6  of  the  Price  Act,  4 
Purd.  4025. 

191.  APPOINTMENT  OF  MASTER  TO  REPORT  ON 

EXPEDIENCY     OF     GRANTING     APPLICA- 
TION. 

SECTION  12.  In  all  cases  where  an  application  shall  be  made 
to  the  court  for  a  decree  authorized  under  any  of  the  provisions 
of  this  Act,  the  court  may  appoint  a  suitable  person  as  master  to 
investigate  the  facts  of  the  case,  and  to  report  upon  the  ex- 
pediency of  granting  the  application  and,  in  cases  where  authority 
is  asked  to  make  a  sale  or  mortgage,  upon  the  amount  to  be  raised 
thereby ;  and  upon  such  report  being  made,  the  court  may  decree 
accordingly. 

NOTE. — This  is  copied  from  Section  16  (?)  of  the  Fiduciaries  Act  (see 
436  infra. 

See  Act  of  July  n,  1917  (P.  L.  790)  Sees.  624-5  infra. 

192.  BOND  OF  PERSON  OR  CORPORATION  CARRY- 

ING  OUT  DECREE. 

SECTION  13.  In  all  cases  where  the  carrying  out  of  any  decree 
of  the  court  under  the  provisions  of  this  Act  shall  involve  the 
receipt  of  money  by  the  person  carrying  it  out,  the  court  shall 
direct  the  person  acting  under  the  decree  to  file  a  bond  to  the 
commonwealth  in  a  sufficient  amount  conditioned  for  the  proper 
application  of  all  moneys  to  be  received,  which  bond  shall  inure 
to  the  benefit  of  all  parties  interested  and  be  executed  by  two 
individual  sureties  or  by  one  corporate  surety,  approved  by  the 


REVISED  PRICE  ACT— SECTIONS  13-14  115 

court,  and  before  any  such  decree  shall  be  executed,  such  bond, 
with  sureties  as  may  be  required,  shall  be  filed :  Provided,  That 
where  a  corporation  duly  authorized  by  law,  shall  be  designated 
to  carry  out  any  such  decree,  the  court  may,  in  lieu  of  security 
as  aforesaid,  permit  such  corporation  to  enter  its  own  bond  with- 
out surety. 

NOTE. — This  is  copied  from  Section  16  (/)  of  the  Fiduciaries  Act  (see 
437  infra)  which  is  founded  in  part  on  Section  6  of  the  Price  Act,  4  Purd. 
4026. 

Section  10  of  the  Price  Act,  4  Purd.  4029,  reads  as  follows:  "The 
directions  given  in  the  sixth  section  of  this  Act  in  regard  to  the  security 
to  be  given  in  cases  of  sales,  mortgage,  or  letting  of  real  estate,  and  the 
condition  of  the  bond  or  security  therein  prescribed,  shall  apply  to  all 
cases  of  sales  or  mortgage  of  real  estate  by  order  of  the  courts  of  this 
commonwealth :  Provided,  That  no  decree  for  the  sale,  mortgaging,  or 
letting  of  any  real  estate  under  the  provisions  of  this  Act,  shall  be  made 
except  when  the  president  of  the  court,  or  the  law  judge  or  judges  thereof, 
shall  be  present,  and  that  the  acts  in  relation  to  special  courts,  where  the 
president  judge  shall  be  interested,  related  to  parties  in  interest,  or 
otherwise  incapable  of  acting,  shall  apply  to  all  such  provisions." 

This  section  was  apparently  introduced  in  the  Price  Act  to  cure  the 
inconsistency  between  Sections  4  and  6:  Thorn's  Appeal,  35  Pa.  47.  The 
Commissioners  recommend  its  repeal  as  unnecessary  in  the  Revised  Act. 

See  form  23. 

Upon  the  entry  of  such  security  the  court  of  common  pleas  has  juris- 
diction to  entertain  the  petition  of  the  trustees  of  a  church  to  borrow 
money  due  notice  of  such  application  having  been  given.  In  re  St. 
Joseph's  Church,  49  Pa.  C.  C.  315,  16  Sch.  327. 

193.    NOTICES  OF  PUBLIC  SALES. 

SECTION  14.  Whenever,  by  the  provisions  of  this  Act,  it  shall 
be  lawful  for  the  court  to  order  the  public  sale  of  real  estate, 
public  notice  of  such  sale  shall  be  given  by  the  person  who  is  to 
make  the  sale,  once  a  week  for  a  period  of  three  weeks  before 
the  day  appointed  therefor,  by  advertisement  in  at  least  one 
newspaper  published  in  the  county,  if  there  be  one,  or  if  there  be 
none,  then  in  an  adjoining  county;  and  in  all  cases,  notice  shall 
also  be  given  by  handbills,  one  of  which  shall  be  posted  at  a 
conspicuous  place  on  the  real  estate  proposed  to  be  sold,  and  at 
least  three  of  which  shall  be  posted  at  three  of  the  most  public 
places  in  the  vicinity  of  such  estate. 


u6  REVISED  PRICE  ACT— SECTIONS   14-15-16-17(0) 

NOTE. — This  is  copied  from  Section  16  (g)  of  the  Fiduciaries  Act  (see 

438  infra)   and,  for  the  sake  of  uniformity,  is  substituted  for  the  pro- 
visions of  Section  4  of  the  Price  Act,  4  Purd.  4031. 

194.  SECURING    UNPAID    PURCHASE    MONEY    BY 

MORTGAGE. 

SECTION  15.  Whenever,  under  the  provisions  of  this  Act,  the 
court  has  power  to  authorize  or  confirm  a  sale  of  real  estate,  the 
same  may  be  made  upon  such  terms  as  the  court  shall  approve, 
all  unpaid  purchase  money  to  be  secured  on  the  premises  by 
mortgage. 

NOTE. — This  is  copied  from  Section  16  (h)  of  the  Fiduciaries  Act  (see 

439  infra)  which  is  derived  in  part  from  Section  4  of  the  Price  Act,  4 
Purd.  4022. 

195.  ACKNOWLEDGMENT  OF  DEEDS,  MORTGAGES 

AND  LEASES. 

SECTION  16.  All  deeds,  mortgages  or  leases  executed  in  pur- 
suance of  any  decree  of  the  court  under  the  provisions  of  this  Act 
may  be  acknowledged  before  any  officer  or  person  now  or  here- 
after authorized  by  the  laws  of  this  commonwealth  to  take  the 
acknowledgment  of  deeds  and  other  instruments  of  writing  to  be 
recorded  therein. 

NOTE. — This  section  is  designed  to  make  the  law  relating  to  the  ac- 
knowledgment of  instruments  executed  under  the  authority  of  the  Act 
similar  to  the  general  law  prevailing  in  such  cases.  There  seems  to  be 
no  reason  now  for  making  any  special  distinction  as  to  the  acknowledg- 
ment of  such  instruments.  The  various  acts  supplementing  the  Price  Act 
relating  to  acknowledgments  are  as  follows: 

Act  of  April  13,  1854,  P.  L.  368,  Section  I,  4  Purd.  4029;  April  i,  1863, 
P.  L.  187,  4  Purd.  4031;  March  23,  1867,  P.  L.  43,  Section  i,  4  Purd. 
4032;  April  17,  1866,  P.  L.  108,  as  amended  by  Act  of  April  22,  1903, 
P.  L.  241,  4  Purd.  4031. 

196.  EFFECT    OF    DEATH,    ETC.,    OF    FIDUCIARY 

DESIGNATED     TO     CARRY     OUT     DECREE 
WHERE  ONLY  ONE  FIDUCIARY. 

SECTION  17.  (a)  In  all  cases  where  the  sale  of  real  estate  shall 
be  made  by  an  executor,  administrator,  guardian  or  trustee  under 
an  order  of,  or  confirmed  by,  the  court,  or  where  the  making  of 
a  mortgage  by  such  fiduciary  shall  be  authorized  by  said  court, 
and  the  letters  testamentary  or  of  administration  shall  be  re- 


REVISED  PRICE  ACT— SECTION  17(0),  (&)  117 

voked,  or  the  executor,  administrator,  guardian  or  trustee  shall 
be  removed,  or  shall  die,  or  become  insane,  or  otherwise  be  in- 
capable, before  a  conveyance  is  made  to  the  purchaser,  or  before 
a  mortgage  is  executed  and  delivered,  it  shall  be  lawful  for  the 
successor  of  such  executor,  administrator,  guardian  or  trustee, 
having  first  given  security,  to  be  approved  by  the  said  court,  for 
the  faithful  appropriation  of  the  proceeds  of  such  sale,  to  execute 
and  deliver  to  the  purchaser  a  deed  of  conveyance  for  the  estate 
so  sold,  on  the  purchaser's  full  compliance  with  the  terms  and 
conditions  of  sale,  or  to  execute  and  deliver  said  mortgage.  If 
there  shall  be  no  such  successor  who  shall  have  given  security  as 
aforesaid,  the  said  court  shall  have  power,  on  petition  of  the 
purchaser,  to  direct  the  clerk  of  the  court  to  execute  and  deliver 
to  the  purchaser  the  necessary  deed  of  conveyance,  on  his  full 
compliance  with  the  terms  and  conditions  of  sale,  paying  into 
court  the  moneys  payable,  and  executing  and  delivering  to  the 
clerk  any  bond  and  mortgage  required  by  the  said  terms  and 
conditions,  which  moneys  and  bond  and  mortgage  shall  remain 
subject  to  the  disposition  of  the  court;  or,  where  the  making  of 
a  mortgage  by  a  fiduciary  shall  be  authorized  by  said  court,  the 
court,  under  the  circumstances  aforesaid,  shall  have  power  to 
direct  the  clerk  of  the  court  to  execute  and  deliver  such  mortgage. 
The  like  proceedings  may  be  had  where  an  executor,  adminis- 
trator, guardian  or  trustee  shall  neglect  or  refuse  to  execute  and 
deliver  such  deed  or  mortgage  for  the  space  of  thirty  days  after 
due  notice  of  an  order  of  the  court  requiring  him  to  execute  and 
deliver  the  same. 

NOTE. — This  is  modeled  upon  Section  16  (/)   I  of  the  Fiduciaries  Act 
(see  441  supra). 

197.     WHERE  JOINT  FIDUCIARIES. 

(&)  In  all  cases  where  the  sale  of  real  estate  shall  be  made  by 
co-executors,  co-administrators,  co-guardians  or  co-trustees  under 
an  order  of,  or  confirmed  by,  the  court,  or  where  the  making  of 
a  mortgage  by  such  co-fiduciaries  shall  be  authorized  by  said 
court,  and  if  one  or  more  of  such  co-fiduciaries  shall  be  removed, 
or  shall  die,  or  become  insane,  or  otherwise  be  incapable,  before 
a  conveyance  is  made  to  the  purchaser,  or  before  such  mortgage 
is  executed  and  delivered,  said  court  may,  upon  the  facts  being 
made  to  appear  by  petition  duly  verified,  authorize  the  surviving 
or  remaining  fiduciary  or  fiduciaries  to  execute  and  deliver  to  the 


Ii8       REVISED  PRICE  ACT— SECTION  17  (b),  (c),  (d),  (e) 

purchaser  a  deed  of  conveyance  for  the  real  estate  so  sold,  on 
the  purchaser's  full  compliance  with  the  terms  and  conditions  of 
sale,  or  to  execute  and  deliver  such  mortgage. 

NOTE. — This  is  modeled  upon  Section  16  (/)  2  of  the  Fiduciaries  Act 
(see  442  infra). 

198.    WHERE  SALE  HAS  NOT  BEEN  EFFECTED. 

(c)  Where  authority  is  or  shall  be  given  by  decree  of  any  court 
to  executors,  administrators,  guardians  or  trustees  to  sell  real 
estate,  and  any  of  such  executors,  administrators,  guardians  or 
trustees  shall  have  died,  been  removed,  become  insane  or  other- 
wise be  incapable,  or  cease  to  act,  before  a  sale  is  effected,  in  all 
such  cases  said  court  may,  upon  the  facts  being  made  to  appear  by 
petition  duly  verified,  authorize  the  surviving  or  remaining  fidu- 
ciary or  fiduciaries  to  effect  such  sales,  with  as  full  effect  in  all 
particulars,  as  if  effected  or  executed  by  the  executors,  adminis- 
trators, guardians  or  trustees  in  office  at  the  time  the  sale  was 
originally  decreed. 

NOTE. — This  is  modeled  upon  Section  16  (/)  3  of  the  Fiduciaries  Act 
(see  443  infra). 

igg.  TITLE  OF  PURCHASER  OR  MORTGAGEE  NOT 
AFFECTED  BY  REVOCATION  OF  LETTERS 
OR  REMOVAL  OF  FIDUCIARY  AFTER  SALE 
OR  MORTGAGE  MADE. 

(d)  Every  sale  made,  and  every  deed  or  mortgage  executed 
and  delivered  in  pursuance  of,  and  agreeably  to  the  provisions  of 
this   section   shall   vest   the   property   therein   described   in  the 
grantee  or  mortgagee,  as  fully  and  effectually  as  if  the  same 
had  been  made,  executed  and  delivered  by  all  the  fiduciaries  to 
whom  the  authority  to  sell  or  mortgage  was  originally  given. 

NOTE. — This  is  copied  from  Section   16  (;')   4  of  the  Fiduciaries  Act 
(see  444  infra). 

200.  EFFECT  OF  SALE,  CONVEYANCE  OR  MORT- 
GAGE. 

(e)  In  all  cases  of  sales  or  mortgages  under  the  order  of,  or 
confirmed  by  the  court,  the  title  of  the  purchaser  or  mortgagee 
shall  not  be  affected  by  the  subsequent  revocation  of  the  letters 
testamentary  or  of  administration  of  the  executor  or  adminis- 
trator making  such  sale  or  mortgage,  or  by  the  subsequent  re- 


REVISED  PRICE  ACT— SECTIONS  17  (*),  (/)-i8  119 

moval  of  the  executor,  administrator,  guardian  or  trustee  making 
such  sale  or  mortgage. 

NOTE. — This  is  copied  from  Section  16  (/)  5  of  the  Fiduciaries  Act 
(see  445  infra). 

201.  IRREGULARITY  OR  DEFECT  IN  ORIGINAL  AP- 

POINTMENT OF  FIDUCIARY  NOT  TO  AF- 
FECT TITLE  OF  PURCHASER  OR  MORT- 
GAGEE. 

(/)  Whenever,  in  pursuance  of  proceedings  in  the  court  of  any 
county,  any  person  therein  described  as  a  trustee,  guardian, 
executor,  administrator,  or  as  standing  in  any  other  fiduciary 
relation  to  the  parties  interested,  shall  grant  and  convey  or  mort- 
gage any  real  estate,  in  which  proceedings  security  shall  be  duly 
entered  by  him  or  her,  under  the  order  or  decree  of  the  court,  no 
irregularity  or  defect  in  his  or  her  original  appointment,  or  the 
absence  of  any  proper  qualification  in  respect  thereto,  shall  affect 
the  title  of  the  grantee,  purchaser  or  mortgagee  or  the  liability  of 
the  sureties,  but  the  same  shall  be  as  valid  in  all  respects  as  if 
such  irregularity  or  defect  had  not  existed. 

NOTE. — This  is  copied  from  Section  16  (;')  6  of  the  Fiduciaries  Act 
(see  446  infra). 

202.  SALE  OR  MORTGAGE  TO  THE  FIDUCIARY. 

SECTION  1 8.  Whenever  any  court,  having  jurisdiction  under 
this  act  to  decree  a  sale  or  mortgage  of  real  estate,  shall  issue  its 
order  to  any  executor,  administrator,  guardian  or  trustee,  specially 
appointed  for  the  purpose  or  otherwise,  to  sell  or  mortgage  such 
real  estate,  and  shall,  in  any  case  within  its  jurisdiction,  give 
authority  to  any  executor,  administrator,  guardian  or  trustee,  to 
bid  at  such  sale,  and  shall  confirm  the  sale  to  such  fiduciary  or 
shall  authorize  the  making  of  such  mortgage  to  any  executor, 
administrator,  guardian  or  trustee,  the  said  court  may  make  an 
order  directing  its  clerk  to  execute  a  deed  or  mortgage,  as  the 
case  may  be,  for  said  real  estate  to  such  purchaser  or  mortgagee, 
who  shall  give  security  and  shall  account  for  the  amount  of  said 
purchase  money  or  mortgage  money,  in  the  settlement  of  his 
accounts,  to  said  court. 

NOTE. — This  is  copied  from  Section  16  (&)  of  the  Fiduciaries  Act 
(see  447  infra). 

See  form  68. 


120         REVISED  PRICE  ACT— SECTIONS  19  (a),  (&)-2o(a) 

203.  REAL  ESTATE  IN  THE  SAME  OR  DIFFERENT 
.       COUNTIES,— WHERE     WHOLLY     IN     ONE 

COUNTY. 

SECTION  19.  (a)  In  all  proceedings  under  the  provisions  of  this 
act,  where  the  real  estate  shall  lie  wholly  within  one  county,  the 
petition  shall  be  presented  only  in  the  court  of  that  county. 

NOTE. — This  is  a  new  clause  in  accordance  with  the  proviso  to  Section  I 
of  the  Price  Act. 

204.  WHERE  REAL  ESTATE  DIVIDED  BY  COUNTY 

LINE. 

(b)  When  an  application  shall  be  made,  under  the  provisions 
of  this  act,  for  the  sale,  mortgaging,  leasing  or  other  proceedings 
relating  to  real  estate,  through  which  real  estate  the  line  dividing 
two  or  more  counties  runs,  the  court  of  the  county  in  which  the 
mansion  house  is  situated,  or,  if  there  be  no  mansion  house,  the 
court  of  the  county  where  the  principal  improvements  may  be,  or, 
if  there  be  no  improvements,  the  court  of  either  county,  may 
exercise  jurisdiction  as  to  the  whole  of  such  real  estate,  irrespec- 
tive of  the  county  line;  and  any  such  sale,  mortgaging,  leasing 
or  other  decree  relating  to  real  estate,  shall  be  as  effectual  as  if 
the  whole  of  such  real  estate  had  been  within  the  county  whereof 
said  court  has  jurisdiction.  Notices  of  said  proceedings,  as  re- 
quired by  this  act,  shall  be  given  in  all  the  counties  in  which  the 
land  is  situated,  and  a  certified  copy  of  all  proceedings  shall  be 
filed  in  the  proper  court  of  each  county  in  which  said  land  is 
situated.  Any  mortgage  taken  to  secure  the  purchase  money, 
or  any  part  thereof,  shall  be  duly  recorded  in  each  of  the  counties 
in  which  said  lands  lie,  as  required  by  law. 

NOTE. — This  is  derived  from  Section  I  of  the  Act  of  May  28,  1915,  P.  L. 
635,  6  Purd.  7286,  supplementary  to  the  Price  Act.  The  last  two  sentences 
have  been  made  uniform  with  the  provisions  of  Section  16  (/)  2  of  the 
Fiduciaries  Act  (see  449  infra). 

205.  PRIVATE  SALES,— POWER  TO  AUTHORIZE  OR 

DIRECT. 

SECTION  20.  (a)  The  courts  of  the  several  counties  of  this 
commonwealth,  in  all  cases  where,  under  the  provisions  of  this 
act,  such  courts  have  power  to  order  the  sale  of  real  estate,  may 
authorize  or  direct  a  private  sale,  if,  in  the  opinion  of  the  court, 


REVISED  PRICE  ACT— SECTIONS  20  (a),  (&)-2i  121 

under  all  the  circumstances,  a  better  price  can.be  obtained  at 
private  than  at  public  sale,  as  where  the  interest  shall  be  un- 
divided, or  for  any  other  sufficient  cause. 

NOTE. — This  is  copied  from  Section  16  (m)  i  of  the  Fiduciaries  Act 
(see  450  infra)  and  is  intended  to  supersede  so  much  of  Section  4  of 
the  Price  Act  as  authorizes  private  sales. 

206.  OBJECTIONS  TO  SALES. 

(&)  Any  party  interested  as  heir,  devisee  or  intending  pur- 
chaser, or  any  legatee  whose  legacy  is,  by  the  express  terms  of 
the  will,  or  by  law,  charged  on  such  real  estate,  may  appear  and 
object  to  such  private  sale  on  account  of  the  insufficiency  of  the 
price,  and,  if  such  objection  be  sustained,  may  offer  to  give  or 
pay  a  substantial  increase  for  such  property,  and  the  court,  at  its 
discretion,  may  thereupon  authorize  or  direct  such  sale,  or  refuse 
to  authorize  or  direct  the  same,  and  accept  any  substantially 
increased  offer,  and  may  authorize  the  sale  of  such  property  to 
such  new  bidder  upon  compliance  with  the  conditions  of  sale  and 
giving  such  security  as  shall  be  directed  by  the  court;  or,  such 
party  interested  or  legatee  may  appear  as  aforesaid  and  object 
to  such  sale  on  any  legal  or  equitable  grounds:  Provided,  That 
nothing  herein  contained  shall  be  construed  to  affect  the  existing 
law  with  respect  to  objections  to  public  sales. 

NOTE. — This  is  modeled  upon  Section  16  (m)  3  of  the  Fiduciaries  Act 
(see  452  infra). 

Under  this  section  of  the  Act,  a  third  person,  desirous  of  purchasing 
the  property  and  willing  to  pay  more  than  the  price  set  forth  in  the 
petition  may  appear  and  object  to  the  confirmation  of  the  sale  and  it  is 
the  duty  of  the  court  to  accept  any  substantially  increased  offer  over  that 
offered  by  the  purchaser  in  the  petition.  In  the  absence  of  a  rule  of 
court  to  govern  the  procedure  as  a  matter  of  practice,  offers  should  be  in 
writing  accompanied  by  a  certified  check  for  the  increase.  It  was  never 
intended  that  the  parties  should  make  oral  bids  in  open  court.  Mauch's 
£st.,  47  Pa.  C.  C.  490,  67  P.  L.  J.  308,  16  North,  405,  33  York  45. 

207.  RETURN  AND  CONFIRMATION  OF  SALES. 

SECTION  21.  All  public  sales  of  real  estate  under  the  pro- 
visions of  this  act  shall  be  subject  to  confirmation  by  said  court; 
but  in  the  case  of  private  sales  authorized  or  directed  under  the 
provisions  of  this  act,  no  return  or  confirmation  shall  be  necessary. 

NOTE. — This  is  modeled  upon  Section  16  (n)  of  the  Fiduciaries  Act 
(see  453  infra). 


122  REVISED  PRICE  ACT— SECTIONS  22-23-24 

208.  DISCHARGE  OF  LIENS. 

SECTION  22.  All  public  sales  of  real  estate  under  the  provisions 
of  this  act  shall  have  the  effect  of  judicial  sales  as  to  the  discharge 
of  liens  upon  the  real  estate  so  sold;  but  private  sales  shall  not 
discharge  the  liens  of  debt  of  record. 

NOTE. — This  section  is  substituted  for  the  provision  of  Section  5  of  the 
Price  Act  that  "by  every  such  public  sale  the  premises  sold  shall  be  dis- 
charged from  all  liens,"  and  the  provision  of  Section  2  of  the  supplement- 
ary Act  of  March  23,  1867,  P.  L.  43,  4  Purd.  4032,  that  private  sales  "shall 
discharge  the  premises  sold  from  the  lien  of  the  debts  of  the  decedent, 
except  debts  of  record,  and  debts  secured  by  mortgage;  Provided,  That 
the  security,  required"  by  the  Price  Act  "shall  have  been  duly  entered. 

209.  NO  OBLIGATION  TO  SEE  TO  APPLICATION  OF 

PURCHASE-MONEY. 

SECTION  23.  Whenever  a  public  or  private  sale  of  real  estate 
shall  be  authorized,  directed  or  confirmed  by  any  court  under  the 
provisions  of  this  act,  the  person  or  persons  purchasing  the  real 
estate  so  sold  and  taking  title  in  pursuance  of  the  decree  of  the 
court,  shall  take  such  title  free  and  discharged  of  any  obligation 
to  see  to  the  application  of  the  purchase-money. 

NOTE. — This  is  copied  from  Section  16  (/»)  of  the  Fiduciaries  Act.  (See 
455  infra.) 

210.  APPEALS. 

SECTION  24.  In  all  cases  and  proceedings  under  this  act,  appeals 
may  be  taken  to  the  proper  appellate  court  from  the  orphans' 
court,  as  now  provided  by  law  in  other  cases,  and  from  the  court 
of  common  pleas,  as  provided  in  equity  cases :  Provided,  That  if 
any  decree  be  carried  into  execution  before  the  appeal  be  per- 
fected, and  written  notice  thereof  given  to  any  vendee,  mort- 
gagee, or  lessee,  any  reversal  thereof  shall  not  affect  the  right 
or  title  of  such  vendee,  mortagee,  or  lessee,  but  the  purchase  or 
mortgage  moneys  or  rents  shall  stand  in  lieu  of  the  premises  sold 
or  mortgaged,  or  leased,  so  far  as  thus  encumbered:  Provided, 
further,  That  before  any  decree  be  carried  into  effect  to  afford 
such  indemnity,  twenty-one  days  be  allowed  from  its  entry  to  take 
and  perfect  such  appeal. 

NOTE.— This  is  Section  8  of  the  Price  Act,  4  Purd.  4028,  modified  by 
substituting  "proper  appellate"  for  "supreme,"  and  by  omitting,  after 
"equity  cases"  the  words  "in  the  respective  counties  of  the  state."  In  the 


REVISED  PRICE  ACT— SECTIONS  24-25-26  123 

scond  proviso,  the  period  has  been  made  twenty-one  instead  of  twenty  days, 
to  correspond  with  the  period  fixed  by  the  general  appeals  act. 

211.  SHORT  TITLE. 

SECTION  25.  This  act  shall  be  known  and  may  be  cited  as  the 
Revised  Price  Act  of  1917. 

212.  REPEALER. 

SECTION  26.  The  following  acts  and  parts  of  acts  of  assembly 
are  repealed  as  respectively  indicated.  The  repeal  of  the  first 
section  of  an  act  shall  not  repeal  the  enacting  clause  of  such  act. 

Section  10  of  an  act  entitled  "An  Act  supplementary  to  the 
several  acts  of  this  commonwealth  concerning  partitions,  and  for 
other  purposes  therein  mentioned,"  approved  April  7,  1807,  P.  L. 
155,  absolutely. 

Section  2  of  an  act  entitled  "A  supplement  to  the  intestate  law 
of  this  commonwealth,"  approved  April  8,  1826,  P.  L.  255,  abso- 
lutely. 

Section  i  of  an  act  entitled  "An  Act  supplementary  to  the 
various  acts  relating  to  orphans'  and  registers'  courts,  and 
executors  and  administrators,  and  the  act  relating  to  the  measure- 
ment of  grain,  salt,  and  coal,"  approved  June  16,  1836,  P.  L.  682, 
absolutely. 

Section  2  of  an  act  entitled  "A  supplement  to  an  act,  entitled 
'An  Act  relating  to  orphans'  court,'  approved  the  twenty-ninth 
of  March,  one  thousand  eight  hundred  and  thirty-two,"  approved 
March  16,  1847,  P.  L.  474,  absolutely. 

Sections  I  to  5,  inclusive,  of  an  act  entitled  "An  Act  supple- 
mentary to  an  act  passed  the  twenty-ninth  day  of  March,  one 
thousand  eight  hundred  and  thirty-two,  entitled  'An  Act  relating 
to  orphans'  courts,'  and  relating  to  contracts  of  decedents  and 
escheats  in  certain  cases,  and  relative  to  the  district  court  of  the 
city  and  county  of  Philadelphia,  and  to  registers  of  wills,"  ap- 
proved April  3,  1851,  P.  L.  305,  absolutely. 

Sections  i  to  8,  inclusive,  and  Section  10  of  an  act  entitled 
"An  Act  relating  to  the  sale  and  conveyance  of  real  estate,"  ap- 
proved April  1 8,  1853,  P.  L.  503,  absolutely. 

Sections  i  and  3  of  an  act  entitled  "A  supplement  to  an  act, 
entitled  'An  Act  relating  to  the  sale  and  conveyance  of  real 
estate,'  "  approved  April  13,  1854,  P.  L.  368,  absolutely. 

Section  5  of  an  act  entitled  "An  Act  to  amend  certain  defects 


124  REVISED  PRICE  ACT— SECTION  26 

of  the  law  for  the  more  just  and  safe  transmission  and  secure 
enjoyment  of  real  and  personal  estate,"  approved  April  27,  1855, 
P.  L.  368,  absolutely. 

An  act  entitled  "A  further  supplement  to  the  act,  entitled  'An 
Act  relating  to  the  sale  and  conveyance  of  real  estate/  passed  the 
eighteenth  day  of  April,  one  thousand  eight  hundred  and  fifty- 
three,"  approved  April  I,  1863,  P.  L.  187,  absolutely. 

An  act  entitled  "Supplement  to  an  act,  entitled  'An  Act  relating 
to  the  sale  and  conveyance  of  real  estate,'  approved  the  eighteenth 
day  of  April,  Anno  Domini  one  thousand  eight  hundred  and  fifty- 
three,"  approved  April  18,  1864,  P.  L.  462,  absolutely. 

An  act  entitled  "A  supplement  to  an  act  relating  to  the  sale  and 
conveyance  of  real  estate,  approved  the  eighteenth  day  of  April, 
one  thousand  eight  hundred  and  fifty-three,"  approved  April  17, 
1866,  P.  L.  1 08,  absolutely. 

Sections  I  and  2  of  an  act  entitled  "An  Act  relating  to  judicial 
sales,  and  the  preservation  of  the  lien  of  mortgages,"  approved 
March  23,  1867,  P.  L.  43,  absolutely. 

An  act  entitled  "A  further  supplement  to  an  act,  entitled  'An 
Act  relating  to  the  sale  and  conveyance  of  leal  estate/  approved 
the  eighteenth  day  of  April,  Anno  Domini,  one  thousand  eight 
hundred  and  fifty-three,  authorizing  the  courts  to  decree  the  leas- 
ing and  combination  of  lands  for  mining  purposes,"  approved 
June  8,  1874,  P.  L.  277,  absolutely. 

Section  I  of  an  act  entitled  "An  Act  to  amend  the  second  section 
of  an  act,  entitled  'An  Act  relative  to  the  sale  and  conveyance  of 
real  estate/  approved  the  eighteenth  day  of  April,  one  thousand 
eight  hundred  and  fifty-three,  extending  the  provisions  thereof  to 
real  estate  upon  which  are  limited  vested  remainders  which  are 
liable  to  open  and  let  in  after  born  children,  and  validating  sales 
of  real  estate  heretofore  made  by  proceedings  under  said  act  of 
lands  and  tenements  subject  to  such  remainders,"  approved  June 

14,  1897,  P.  L.  144,  absolutely. 

Sections  I  and  2  of  an  act  entitled  "An  Act  authorizing  the 
several  orphans'  courts  of  this  commonwealth  to  decree  the  sale, 
mortgaging,  leasing  or  conveyance  upon  ground-rent,  of  lands 
devised  or  held  with  remainder  to  a  class  of  persons,  some  or  all 
of  whom  are  unborn,  and  to  validate  certain  sales  and  conveyances 
heretofore  made  by  decree  of  court  in  such  cases,"  approved  June 

15,  1897,  P.  L.  159,  absolutely. 

An  act  entitled  "An  Act  amending  an  act  approved  April  seven- 


REVISED  PRICE  ACT— SECTION  26  125 

teenth,  one  thousand  eight  hundred  and  sixty-six,  entitled  'A  sup- 
plement to  an  act  relating  to  the  sale  and  conveyance  of  real  estate,' 
approved  the  eighteenth  day  of  April,  one  thousand  eight  hundred 
and  fifty-three ;  providing  that  deeds  may  be  acknowledged  before 
any  justice  of  the  peace,  notary  public,  or  other  officer  having 
authority  to  take  acknowledgment  of  deeds  or  other  instruments 
of  writing,"  approved  April  22,  1903,  P.  L,.  241,  absolutely. 

An  act  entitled  "An  Act  relating  to  acknowledgments  of  deeds ; 
authorizing  county  treasurers,  county  commissioners,  sheriffs, 
executors,  administrators,  trustees,  or  other  persons  acting  in  an 
official  or  representative  capacity,  where  now  required  or  author- 
ized to  make  acknowledgment  of  deeds  or  other  instruments 
before  justices  of  the  peace,  to  make  acknowledgments  of  deeds 
and  other  instruments  before  a  notary  public,  or  any  officer  au- 
thorized by  law  to  take  acknowledgments  of  deeds,  and  validat- 
ing all  such  acknowledgments  heretofore  made  before  other 
officers  than  justices  of  the  peace,"  approved  April  23,  1909,  P. 
L.  156,  in  so  far  as  it  relates  to  acknowledgments  of  deeds  or 
other  instruments  made  in  pursuance  of  decrees  entered  under  the 
provisions  of  this  act. 

An  act  entitled  "An  Act  authorizing  the  several  orphans' 
courts  to  empower  guardians  of  the  estates  of  minors  to  join 
with  the  cotenants  of  said  minors  in  effecting  amicable  partition 
of  lands  held  in  common,"  approved  May  23,  1913,  P.  L.  345, 
absolutely. 

An  act  entitled  "A  supplement  to  an  act  approved  the  eighteenth 
day  of  April,  one  thousand  eight  hundred  fifty-three,  entitled  'An 
Act  relating  to  the  sale  and  conveyance  of  real  estate,'  "  approved 
May  28,  1915,  P.  L.  635,  absolutely. 

All  other  acts  of  assembly,  or  parts  thereof,  that  are  in  any 
way  in  conflict  with  this  act,  or  any  part  thereof,  are  hereby  re- 
pealed. 


THE  WILLS  ACT 

of 
June  7,  1917,  (P.  L.  403.) 

PRELIMINARY  NOTE  BY  COMMISSION. 

The  present  law  on  this  subject  has  proved  so  satisfactory  that 
the  Commissioners  have  recommended  few  changes  of  a  funda- 
mental nature.  The  law,  however,  has  been  codified,  revised,  and 
arranged  in  logical  form.  Some  important  changes  should,  how- 
ever, be  indicated. 

In  Section  2,  it  is  provided  that  the  presence  of  dispositive 
words  after  the  signature  of  a  testator  shall  not,  even  if  they  are 
written  before  the  execution  of  the  instrument,  invalidate  that 
which  precedes  the  signature. 

In  Section  6,  the  period  before  death  when  a  will  for  religious 
or  charitable  uses  may  be  executed  has  been  made  thirty  days 
instead  of  a  calendar  month. 

In  Section  8,  the  appointment  of  testamentary  guardians  is  reg- 
ulated and  the  rights  of  father  and  mother  rendered  more  uniform. 

In  Section  15,  the  law  on  the  subject  of  lapsed  legacies  and 
devises  has  been  revised  and  the  phraseology  of  existing  statutes 
amended,  especially  in  cases  where  the  lapse  occurs  in  the  resid- 
uary clause  or  bequest  and  an  intestacy  results  under  the  present 
law.  According  to  the  revised  act,  the  lapsed  share  will  pass  to 
the  other  residuary  legatees  or  devisees. 

In  Section  16,  the  rights  of  adopted  children  are  extended  to 
cases  of  a  general  devise  or  legacy  to  children  when  the  contrary 
intention  does  not  appear  by  the  will. 

In  Section  17,  provision  is  made  for  the  payment  of  pecuniary 
legacies  from  real  estate  not  specifically  devised,  when  no  contrary 
intention  appears  in  the  will. 

In  Section  18,  it  is  provided  that  a  devise  of  mortgaged  real 
estate  shall  in  all  cases  be  subject  to  the  mortgage  and  that  the 
mortgage  shall  not  be  paid  from  the  personal  estate  in  the  absence 
of  a  direction  to  that  effect. 

In  Section  19,  it  is  provided  that  in  the  case  of  so-called  spend- 
thrift trusts,  the  income  of  the  cestui  que  trust  shall,  notwith- 

126 


WILLS  ACT— CONTENTS  127 

standing,  be  liable  for  the  support  and  maintenance  of  his  wife 
and  minor  children. 

In  Section  21,  it  is  provided  that  the  marriage  of  a  testatrix 
shall  operate  to  revoke  her  will  only  pro  tanto  and  not  absolutely, 
thus  rendering  the  law  uniform  with  that  regulating  the  subject 
in  the  case  of  men. 

In  Section  22,  corresponding  to  Section  23  of  the  Intestate  Act, 
it  is  provided  that  no  murderer  shall  be  entitled  to  take  under  the 
will  of  the  person  whom  he  has  killed. 

In  Section  23,  the  rights  of  a  surviving  husband  and  wife,  elect- 
ing to  take  against  the  will  of  the  deceased  spouse,  are  made  uni- 
form, as  has  already  been  indicated  in  the  Preliminary  Note  to 
the  Intestate  Act ;  and  the  procedure  relative  to  such  election  has 
been  revised  and  defined  with  greater  particularity. 

TABLE  OF  CONTENTS. 

1917  Section 

Pamphlet      Number 

Laws  Herein 

The  Wills  Act,   403  213 

Section    i.  Who  may  make  wills  and  what  may  be 

disposed  of,   405 

Section    2.  Form  and  execution  of  wills,  

Section    3.  Execution  of  wills  by  mark  or  cross, 

Section    4.  Nuncupative  wills,   

(a)  When  and  where  to  be  executed,  

(b)  Requisites,  where  bequest  is  over  one  hun- 

dred dollars 219 

(c)  Proof  after  expiration  of  six  months,  . . .        406  220 

Section    5.  Wills  of  mariners  and  soldiers,  221 

Section    6.  Bequests  and  devises   for  religious  and 

charitable  uses,  222 

Section  7.  Emblements,  crops,  rents,  and  periodical 
payments  accuring  to  tenants  for  life 
and  others,  223 

Section    8.  Testamentary  guardians,    224 

(a)  Appointed  by  father,  224 

(b)  Appointment  by  mother,   225 

(c)  Forfeiture  of  right  by  neglect  of  parental 

duty,    407  226 

Section  9.  Wills  to  be  construed  as  if  executed  im- 
mediately before  death  of  testator, 227 

Section  10.  After-acquired  real  estate  to  pass  by 

general  devise,  228 

Section  n.  General  devise  or  bequest  to  operate  as 
execution  of  general  power  of  appoint- 
ment,    229 


128 


WILLS  ACT— CONTENTS 


1917          Section 
Pamphlet      Number 
Laws  Herein 

Section  12.  Devises    of    real    estate    to    pass   whole 

estate  of  testator,  230 

Section  13.  Devise  of  real  estate  in  fee  tail  construed 

as   estate   in    fee   simple, 231 

Section  14.  Construction  of  "die  without  issue,"  and 

similar  phrases,   408  232 

Section  15.  Lapsed  and  void  devises  and  legacies,..  233 

(a)  Devise    or    legacy    in     favor    of    lineal 

descendants  not  to  lapse  by  death, 233 

(b)  Devise  or  legacy  in  favor  of  brothers  and 

sisters  and  their  children  not  to  lapse  by 

death,  in  certain  cases 234 

(c)  Lapsed  and  void  devises  and  legacies  to 

fall  into  residue;   provisions  where  such 
legacies  and  devises  are  contained  in  the 

residuary  clause, 235 

Section  16.  Devise  or  legacy  to  children  to  include 

adopted  children,   409  236 

(a)  Children  adopted  by  testator,    236 

(b)  Children  adopted  by  devisee  or  legatee..  237 
Section  17.  Pecuniary    legacies    to    be    charged    on 

residuary  real  estate 238 

Section  18.  Devises  of  real  estate  subject  to  mort- 
gage   239 

Section  19.  Spendthrift  trusts;  income  to  be  liable 
for  maintenance  of  wife  and  minor 
children,  240 

Section  20.  Revocation  of  wills,   241 

(a)  Wills  of  lands,   241 

(b)  Wills  of  personalty,  410  242 

Section  21.  Revocation  of  wills  pro  tanto,  by  sub- 
sequent marriage,  or  birth  of  children,  243 

Section  22.  Forfeiture  of  rights  by  devisee  or  legatee 

who  murders  the  testator,   244 

Section  23.  Election  to  take  under  or  against  wills, . .  245 

(a)  Right  of  surviving  spouse  to  elect  to  take 

against  will  of  deceased  spouse,   245 

(b)  How  election  to  be  manifested  and  within 

what  time, 246 

(c)  No  payments  to  be  required  before  elec- 

tion)    411  247 

(d)  Surviving  spouse  may  be  cited  to  make 

election,  248 


WILLS  ACT— Tine— SUCTION  i 


129 


'  1917  Section 

Pamphlet  Number 

Laws  Herein 

(e)  Election  of  surviving  spouse,  or  decree  of 
court  where  there  is  a  failure  to  elect, 

to  be  recorded  and  filed,  249 

Section  24.  Act  not  to   apply  to   wills   of   personal 
estate,    executed   by   testator    domiciled 

without  the  Commonwealth,   412  250 

Section  25.  Short  title  section,  251 

Section  26.  When  act  shall  go  into  operation,    252 

Section  27.  Repealer,   412-5  253 

213.  TITLE. 

AN  ACT. 

Relating  to  the  form,  execution,  revocation  and  interpretation 
of  wills,  to  nuncupative  wills,  to  the  appointment  of  testamentary 
guardians,  to  spendthrift  trusts,  to  forfeiture  of  devise  or  legacy 
in  case  of  murder  of  testator,  to  elections  to  take  under  or  against 
wills,  and  to  the  recording  and  registering  of  such  elections  and 
of  decrees  relative  thereto  and  to  the  fees  therefor. 

214.  WHO  MAY  MAKE  WILLS  AND  WHAT  MAY  BE 

DISPOSED  OF. 

SECTION  i.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  Commonwealth  of  Pennsylvania  in  General 
Assembly  met,  and  it  is  hereby  enacted  by  the  authority  of  the 
same,  That  every  person  of  sound  mind  and  of  the  age  of  twenty- 
one  years  or  upwards,  whether  married  or  single,  may  dispose  by 
will  of  his  or  her  real  estate,  whether  such  estate  is  held  in  fee 
simple  or  for  the  life  or  lives  of  any  other  person  or  persons,  and 
whether  in  severalty,  joint  tenancy  or  common,  and  also  of  his  or 
her  personal  estate. 

NOTE.— This  is  Section  i  of  the  Act  of  April  8,  1833,  P.  L.  249,  4  Purd. 
5109-18,  amended  by  inserting  the  words,  "of  the  age  of  twenty-one  years  or 
upwards,  whether  married  or  single."  This  obviates  the  necessity  for  a 
separate  section  as  to  minors,  thus  supplying  Section  3  of  the  Act  of  1833, 
4  Purd.  5120.  It  also  supplies  Section  7  of  the  Act  of  April  n,  1848,  P.  L. 
537,  4  Purd.  5119  (which  supplied  Section  2  of  the  Act  of  1833)  providing 
that  a  married  woman  might  dispose  of  her  separate  property  by  will  ex- 
ecuted in  the  presence  of  two  or  more  witnesses,  neither  of  whom  should 
be  her  husband.  It  likewise  supplies  Section  5  of  the  Act  of  June  8, 
1893,  P.  L.  345,  4  Purd.  5119,  empowering  married  women  to  make  wills 
as  if  unmarried,  which  act  repealed  the  married  persons'  property  act  of 
June  3,  1887,  P.  L.  332. 
9 


130  WILLS  ACT— SECTIONS  1-2 

The  provision  in  Section  I  of  the  Act  of  1833  as  to  estates  held  for  the 
lives  of  others  was  copied  from  the  Statutes  of  29  Charles  II,  Chapter  3, 
Section  12;  and  the  provision  as  to  joint  tenancy  followed  the  Act  of 
March  31,  1812,  5  Sm.  L.  395,  2  Purd.  2031,  which  provided  that  if  parti- 
tion be  not  made  between  joint  tenants,  the  parts  of  those  who  die  first 
shall  not  accrue  to  the  survivors,  but  shall  descend  or  pass  by  devise,  and 
be  considered  to  every  intent  and  purpose  in  the  same  manner  as  if  such 
deceased  joint  tenants  had  been  tenants  in  common. 

Apropos  of  a  suggestion  that  the  testamentary  age  be  reduced  to  eight- 
een years,  it  may  be  noted  that  in  the  draft  submitted  by  the  Commis- 
sioners in  1832,  it  was  provided  that  wills  of  personal  estate  alone  might 
be  made  by  persons  of  the  age  of  eighteen  years  or  upwards,  but  this  was 
not  approved  by  the  legislature. 

215.     FORM  AND  EXECUTION  OF  WILLS. 

SECTION  2.  Every  will  shall  be  in  writing,  and  unless  the  person 
making  the  same  shall  be  prevented  by  the  extremity  of  his  last 
sickness,  shall  be  signed  by  him  at  the  end  thereof,  or  by  some 
person  in  his  presence,  and  by  his  express  direction;  and  in  all 
cases,  shall  be  proved  by  the  oaths  or  affirmations  of  two  or  more 
competent  witnesses,  otherwise  such  will  shall  be  of  no  effect : 
Provided,  That  the  presence  of  dispositive  or  testamentary  words 
or  directions,  or  the  appointment  of  an  executor  or  the  like,  after 
the  signature  to  a  will,  whether  written  before  or  after  the  ex- 
ecution thereof,  shall  not  invalidate  that  which  precedes  the 
signature. 

NOTE. — This  is  Section  6  of  the  Act  of  1833,  4  Purd.  5120-26,  with  the 
addition  of  the  proviso. 

The  Commissioners  in  1832  remarked  that  it  was  then  the  law  of  Penn- 
sylvania that  real  or  personal  property  might  be  transferred  by  a  will 
without  signature,  seal  or  attesting  witness,  and  although  the  will  was  not 
in  the  handwriting  of  the  testator.  Their  draft  of  Section  6  was  passed 
without  alteration  except  that,  after  the  words  "shall  be  proved"  there 
were  omitted  the  words  "before  the  register  having  jurisdiction  thereof." 

In  the  Laws  Agreed  upon  in  England,  5  Sm.  L.  416,  Section  15,  it  was 
provided  that :  "All  wills  and  writings,  attested  by  two  witnesses,  shall 
be  of  the  same  force  as  to  lands,  as  other  conveyances,  being  legally  proved 
within  forty  days,  either  within  or  without  the  said  province." 

The  Act  of  1705,  i  Sm.  L.  33,  "concerning  the  probates  of  written  and 
nuncupative  wills,  and  for  confirming  the  devises  of  lands,"  was  largely 
derived  from  the  Statute  of  29  Charles  II,  Chapter  3,  but  omitted  Sections 
5  and  6  of  that  statute,  which  prescribed  the  forms  of  execution  and  revo- 
cation of  wills  of  lands.  Section  i  of  the  Act  of  1705  provided  "That 
all  wills  in  writing,  wherein  or  whereby  any  lands,  tenements  or  heredita- 
ments, within  this  province,  have  been,  are(  or  shall  be  devised  (being 


WILLS   ACT— SECTION   2  131 

proved  by  two  or  more  credible  witnesses,  upon  their  solemn  affirmation, 
or  by  other  legal  proof  in  this  province,  or  being  proved  in  the  Chancery 
in  England,  etc.,)  shall  be  good  and  available  in  law,  for  the  granting, 
conveying  and  assuring  of  the  lands  or  hereditaments  thereby  given  or 
devised,  as  well  as  of  the  goods  and  chattels  the,reby  bequeathed." 

The  first  part  of  the  section  as  now  reported  is  copied  from  the  present 
law.  Its  language  is  vague,  if  it  be  literally  interpreted,  but  its  meaning 
has  been  so  often  elucidated  by  the  decisions  of  the  courts  that  the  Com- 
missioners have  felt  it  to  be  unwise  to  remould  it,  and,  for  the  sake  of 
achieving  technical  clarity  of  expression,  raise  new  questions  which  would 
excite  litigation.  The  Commissioners  are  not  aware  that  any  change  is  de- 
manded as  to  the  execution  and  proof  of  wills,  and  have  purposely  avoided 
the  requirement  of  subscribing  witnesses,  which  in  many  other  jurisdictions 
is  the  rule.  It  is  desirable  that  the  laws  should  be  as  simple  and  free 
from  technicality  as  possible,  and  if  subscribing  witnesses  were  necessary 
many  wills  would  be  unjustly  avoided.  Our  present  law  has  proved  very 
satisfactory  in  this  regard,  and  an  innovation  does  not  appear  to  be  ad- 
visable. 

The  Commissioners,  however,  recommend  in  the  proviso  to  this  sec- 
tion a  change  induced  by  the  decision  in  Wineland's  Appeal,  118  Pa.  37. 
The  legislative  requirement  that  a  will  shall  be  signed  at  the  end  thereof, 
the  natural  and  proper  place  for  the  signature,  was  a  judicious  improvement 
upon  the  law  as  it  previously  existed;  but  the  Commissioners  are  of 
opinion  that  the  presence  of  testamentary  provisions  after  the  signature, 
even  if  written  before  the  signature  is  affixed,  should  not  invalidate  what 
the  testator  by  his  signature  has  authenticated. 

See  forms  3,  5-8,  36-7.    See  Seiter's  Est.,  265  Pa.  202;    108  Atl.  614. 

Proof  of  a  lost  will  is  made  out  only  by  proof,  by  two  witnesses  of 
execution  and  of  contents,  each  of  which  must  separately  depose  to  all  the 
facts  necessary  to  complete  the  chain  of  evidence  so  that  no  link  in  it  may 
depend  on  the  credibility  of  one.  Where  a  reputable  scrivener  prepared 
a  will  which  was  signed  by  decedent  in  the  presence  of  two  witnesses,  who 
had  no  knowledge  of  its  contents  and  the  will  was  subsequently  lost  the 
testimony  of  the  scrivener  alone  as  to  its  contents  was  held  by  the  court 
insufficient.  "The  two  witness  rule  is  sound ;  by  permitting  one  witness  to 
establish  the  contents  of  a  lost  will,  the  door  won' '  be  opened  to  intriguing 
and  designing  persons  after  which  misfortur  'st  necessarily  follow ; 
and,  while,  by  such  latter  rule  a  disappointed  heir  may  be  discouraged 
from  destroying  a  will,  dishonesty,  fraud  and  criminal  wrong  would  be 
greatly  encouraged.  If  a  will,  properly  executed,  is  lost,  and  the  one- 
witness  rule  should  prevail,  it  would  permit  a  scrivener  to  write  the  will 
after  his  own  fashion,  diverting  the  estate  into  channels  never  dreamed 
of  by  the  testator,  disinheriting  heirs,  and  denying,  to  those  close  to  him 
throughout  life,  the  benefits  of  his  bounty.  Where  two  witnesses  to  the 
contents  are  required,  the  opportunity  for  engrafting  bogus  wills  on 
estates,  or  for  dishonesty  in  scriveners  who  write  wills,  or  other  fraud 
in  connection  therewith,  if  not  made  impossible,  is  greatly  lessened." 
Hodgson's  Est.,  270  Pa.  210;  112  Atl.  778. 


132  WILLS  ACT— SECTIONS  2-3 

Where  testator  accidently  destroyed  his  will  and  though  intending  to  do 
so,  never  re-wrote  it,  its  contents  cannot  be  shown  until  its  execution  has 
been  proved  by  the  testimony  of  two  witnesses.  Where  such  witnesses 
have  no  knowledge  of  the  contents  of  the  will  and  the  only  other  evidence 
is  that  of  the  man  who  drew  the  will  who  testified  that  he  had  left  it  with 
decedent,  who  told  him  that  he  had  signed  it  in  the  presence  of  two  wit- 
nesses, the  evidence  of  the  execution  of  the  will  is  insufficient.  Weber's 
Est.,  12  Berks  12;  affirmed  in  268  Pa.  7;  no  Atl.  785. 

While  the  presumption  is,  in  the  absence  of  proof,  that  words  appearing 
in  a  will  following  the  signature  were  written  after  the  signature,  yet 
under  the  act  of  1917  they  are  without  effect  and  a  widow  given  a  fee  in 
the  will  did  not  have  her  estate  cut  down  to  a  life  estate  by  the  addition 
of  the  words  "here  life  time"  after  the  signature.  Wilson  v.  Cook,  49  Pa. 
C.  C.  16. 

A  scrawl  or  mark  made  by  the  testatrix,  identified  by  two  witnesses 
both  of  whom  saw  her  "sign"  the  will  and  one  of  whom  was  a  subscribing 
witness,  was  held  a  sufficient  execution  by  Lamorelle,  P.  J.  in  Kris'  Est, 
30  Dist  166. 

On  the  other  hand,  Miller,  J.,  of  the  Orphans'  Court  of  Allegheny 
County,  set  aside  the  probate  of  a  will  where  it  appeared  that  the  testa- 
trix signed  her  name  by  making  a  series  of  unintelligible  marks  which 
were  witnessed  by  two  subscribing  witnesses,  on  the  ground  that  the  act 
is  mandatory  and  requires  that  the  testatrix's  name  must  appear  written 
by  someone  in  her  presence  and  by  her  direction  and  authority.  Perry's 
Est.,  67  P.  L.  J.  216. 

216.  EXECUTION  OF  WILLS  BY  MARK  OR  CROSS. 

SECTION  3.  If  the  testator  be  unable  to  sign  his  name,  for  any 
reason  other  than  the  extremity  of  his  last  sickness,  a  will  to 
which  his  name  is  subscribed  in  his  presence,  by  his  direction  and 
authority,  and  to  which  he  makes  his  mark  or  cross,  unless  unable 
so  to  do,  in  which  case  the  mark  or  cross  shall  not  be  required, 
shall  be  as  valid  as  though  he  had  signed  his  name  thereto: 
Provided,  That  such  will  shall  be  proved  by  the  oaths  or  affirma- 
tions of  two  or  moi  .  •._.  npetent  witnesses. 

NOTE. — This  is  subt<  1  for  Section  i  of  the  Act  of  January  27, 
1848,  P.  L.  16,  4  Purd.  5  j-7,  omitting  the  provisions  as  to  wills  thereto- 
fore made. 

Section  i  of  the  Act  of  1848  reads  as  follows. 

"Every  last  will  and  testament  heretofore  made  or  hereafter  to  be  made, 
excepting  sucn  as  may  have  been  finally  adjudicated,  prior  to  the  passage 
of  this  act,  to  which  the  testator's  name  is  subscribed,  by  his  direction 
and  authority,  or  to  which  the  testator  hath  made  his  mark  or  cross,  shall 
be  deemed  and  taken  to  be  valid  in  all  respects,  Provided,  The  other 
requisites  under  existing  laws  are  complied  with." 

This  phraseology  is  clearly  open  to  criticism,  as  it  might  be  understood 
to  mean  that  a  will,  signed  by  the  direction  of  the  testator,  although  not  in 


WILLS  ACT— SECTIONS  3-4  (<0,   (&)  133 

his  presence,  and  although  he  was  not  in  the  extremity  of  his  last  illness, 
would  be  good,  which,  of  course,  would  be  inconsistent  with  the  preceding 
requirements. 

The  Commissioners  are  of  opinion  that  this  section  of  the  Act  of  1848 
should  be  corrected  in  its  phraseology,  as  an  exception  to  their  general 
method  of  revision,  for  its  reformation,  unlike  that  of  Section  6  of  the 
Act  of  1833,  last  preceeding,  is  not  complicated  by  any  long  series  of 
judicial  decisions ;  and  it  seems  desirable  to  clarify  its  language  before 
any  questions  such  as  have  been  suggested  may  arise. 

The  new  section  is  intended  to  cover  cases  where  a  person  is  unable  to 
sign  his  name,  whether  from  lack  of  education  or  from  physical  weakness. 
The  provision  that  the  mark  may  be  dispensed  with  if  the  testator  be 
unable  to  make  a  mark  is  intended  to  cover  such  a  case  as  that  of  a  man 
who  lost  both  arms  or  is  paralysed. 

See  form  4. 

The  probate  of  a  will  was  set  aside  where  it  appeared  that  the  testatrix 
signed  her  name  by  making  a  series  of  unintelligible  marks  which  were 
witnessed  by  two  subscribing  witnesses,  on  the  ground  that  this  section 
of  the  act  is  mandatory  and  requires  that  the  testatrix's  name  must  appear 
written  by  someone  in  her  presence  and  by  her  direction  and  authority. 
Perry's  Estate,  67  P.  L.  J.  216. 

But  see  Kris'  Est.,  30  Dist.  166. 

217.  NUNCUPATIVE  WILLS. 

SECTION  4.  Personal  estate  may  be  bequeathed  by  a  nuncu- 
pative will,  under  the  following  restrictions : 

218.  WHEN  AND  WHERE  TO  BE  EXECUTED. 

(a)  Such  will  shall  in  all  cases  be  made  during  the  jast  sickness 
of  the  testator,  and  in  the  housejjfjiis  habitation  or  dwelling,  or 
where  he  has  resided  for  the  space  of  ten  days  or  more,  next  be- 
fore the  making  of  such  will ;  except  where  such  person  shall  be 
surprised  by  sickness,  being  from  his  own  house. 

NOTE. — This  is  clause  i  of  section  7  of  the  Act  of  1833,  4  Purd.  5127, 
omitting  at  the  end  the  words  "and  shall  die  before  returning  thereto." 
These  words  seem  unnecessary  and  might  invalidate  a  nuncupative  will 
made  in  a  hospital  should  the  testator  be  removed  to  his  own  home  before 
death. 

Section  7  of  the  Act  of  1833  was  derived  from  Section  3  of  the  Act  of 
1705,  I  Sm.  L.  33,  the  changes  made  by  the  Commissioners  of  1830  being 
the  substitution  in  clause  (b)  of  $100  for  £30,  and  the  placing  of  this  lim- 
itation in  the  second  clause  instead  of  the  first. 

The  Act  of  1705  was  derived  from  the  Statute  of  29  Charles  II. 

219.  REQUISITES  WHERE  BEQUEST  IS  OVER  ONE 

HUNDRED  DOLLARS. 

(&)  Where  the  sum  or  value  bequeathed  shall  exceed  one  hun- 
dred dollars,  it  shall  be  proved  that  the  testator,  at  the  time  of 


134  WILLS  ACT— SECTIONS  4  (&),  (c)-5 

pronouncing  the  bequest,  did  bid  the  persons  present,  or  some 
of  them,  to  bear  witness  that  such  was  his  will,  or  to  that  effect ; 
and  in  all  cases,  the  foregoing  requisites  shall  be  proved  by  two 
or  more  witnesses,  who  were  present  at  the  making  of  such  will. 

NOTE. — This  is  clause  n  of  Section  7  of  the  Act  of  1833,  4  Purd.  5128. 
See  the  note  to  clause  (a). 

220.  PROOF  AFTER  EXPIRATION  OF  SIX  MONTHS. 

(c)  No  testimony  shall  be  received  to  prove  any  nuncupative 
will  after  six  months  elapsed  from  the  speaking  of  the  alleged 
testamentary  words,  unless  the  said  testimony,  or  the  substance 
thereof,  were  committed  to  writing  within  six  days  after  the 
making  of  said  will. 

NOTE.— This  is  Section  11  of  the  Act  of  March  15,  1832,  P.  L.  137,  4 
Purd.  5128,  which  was  derived  from  Section  4  of  the  Act  of  1705,  I  Sm.  L. 
33,  with  merely  verbal  changes.  In  line  3,  "alleged"  has  now  been  substi- 
tuted for  "pretended,"  as  being  more  in  conformity  with  the  modern  use 
of  the  words. 

221.  WILLS  OF  MARINERS  AND  SOLDIERS. 

SECTION  5.  Notwithstanding  this  act,  any  mariner  being  at  sea, 
or  any  soldier  being  in  actual  military  service,  may  dispose  of 
his  movables,  wages  and  personal  estate,  as  he  might  have  done 
before  the  making  of  this  act. 

NOTE. — This  is  Section  8  of  the  Act  of  1833,  4  Purd.  5128,  which  was 
copied  from  Section  7  of  the  Act  of  1705,  i  Sm.  L.  33.  There  were  omitted 
however,  in  the  Act  of  1833,  the  words,  "or  person"  after  "mariner,"  and 
the  words,  "or  they"  after  "as  he."  The  Commissioners  of  1830  remarked, 
in  reference  to  the  change  thus  made :  "By  extending  the  provisions  to  all 
other  persons  at  sea  it  is  conceived  that  there  would  be  some  danger  of 
those  evils  in  respect  to  the  disposition  of  property  by  verbal  wills  against 
which  it  was  the  object  of  a  previous  section  to  guard." 

Under  the  present  law  and  the  decisions  of  the  courts,  mariners  at  sea 
and  soldiers  in  actual  military  service  have  the  same  privileges  in  the 
making  of  wills  that  they  would  have  enjoyed  if  the  English  Statute  of 
Frauds  and  our  Acts  of  1705  and  1833  had  never  been  passed,  as  all  of 
these  statutes  have  expressly  excluded  such  wills ;  the  wills,  though  oral, 
must  however  be  proved  by  two  witnesses:  Smith's  Will,  6  Phila.  104; 
Drummond  vs.  Parish,  3  Curteis  Ecc.  522. 

While  the  Commissioners  are  aware  of  the  dangers  attending  oral  wills, 
they  have  concluded  to  recommend  the  exception  here  made  in  favor  of 
mariners  and  soldiers,  as  a  class  of  persons  who  have  always  been  re- 
garded with  peculiar  indulgence  by  the  law  of  England  as  well  as  by  the 
Roman  law,  in  which  this  exception  originated. 


WILLS  ACT— SECTIONS  5-6  135 

Nuncupative  wills  in  general  have  been  so  safeguarded  by  the  require- 
ments of  the  preceding  sections,  that  the  Commissioners  do  not  believe 
that  any  serious  consequences  will  ensue  from  their  retention.  Such  wills 
seldom  occur  in  practice,  and  yet  their  total  abolition  might  produce  in- 
convenience in  cases  proper  for  them. 

Wills  of  mariners  at  sea  and  soldiers  in  actual  military  service  are  not 
subject  to  the  provisions  of  the  Wills  Act  of  1917,  being  excepted  from  the 
operation  of  that  and  previous  statutes,  but  are  governed  by  the  common 
law  under  which  a  will  of  personal  property  by  word  of  mouth  was 
valid,  made  by  a  boy  over  fourteen  years  of  age,  although  a  minor. 
Henninger's  Est.,  30  Dist.  413.  (Note;  This  case  contains  a  most  ex- 
haustive and  learned  dissertation  on  the  subject  of  nuncupative  wills  and 
the  wills  of  mariners  at  sea  and  soldiers  in  active  service.) 

222.     BEQUESTS    AND    DEVISES    FOR    RELIGIOUS 
AND    CHARITABLE   USES. 

SECTION  6.  No  estate,  real  or  personal,  shall  be  bequeathed 
or  devised  to  any  body  politic,  or  to  any  person  in  trust,  for 
religious  or  charitable  uses,  except  the  same  be  done  by  will  at- 
tested by  two  credible,  and,  at  the  time,  disinterested  witnesses, 
at  least  thirty  days  before  the  decease  of  the  testator;  and  all 
dispositions  of  property  contrary  hereto  shall  be  void,  and  go  to 
the  residuary  legatee  or  devisee,  heirs  or  next  of  kin,  according  to 
law.  A  disinterested  witness,  within  the  meaning  of  this  section, 
is  a  witness  not  interested  in  such  religious  or  charitable  use, 
this  section  not  being  intended  to  apply  to  a  witness  interested 
in  some  other  devise  or  bequest  in  the  same  instrument. 

NOTE.— This  is  Section  i  of  the  Act  of  June  7,  1911,  P.  L.  702,  7  Purd. 
7766,  altered  so  as  to  apply  to  wills  only,  and  by  transferring  the  definition 
of  "a  disinterested  witness"  to  the  end  of  the  section.  Another  statute 
should  be  passed  relating  to  gifts  otherwise  than  by  will,  so  as  to  make 
the  law  uniform.  The  Act  of  1911  amended  Section  n  of  the  Act  of 
April  26,  1855,  P.  L.  332,  i  Purd.  595,  4  Purd.  5129,  by  adding  the  definition 
of  a  disinterested  witness,  which  has  been  construed  by  the  supreme  court 
in  Palethorp's  Estate,  249  Pa.  411. 

Much  might  perhaps  be  said  in  favor  of  the  abolition  of  the  prohibition 
of  bequests  and  devises  for  charitable  and  religious  uses  made  within 
any  definite  period  of  time  before  the  death  of  the  testator.  The  Com- 
missioners have  concluded  to  make  no  recommendations  on  this  subject 
to  the  Legislature.  They  have,  however,  substituted  for  the  period  of  one 
calendar  month,  that  of  thirty  days,  for  the  reason  that  the  calendar  months 
of  the  year  do  not  contain  the  same  number  of  days,  and  the  provision 
should  be  uniform. 


136  WILLS  ACT— SUCTIONS  6-7-8  (a) 

Decedent  died  October  13,  1918,  leaving  a  will  dated  Oct.  n,  1918,  with 
a  devise  of  a  remainder  interest  in  real  estate  to  a  charity  in  default  of 
issue  to  the  life  tenant  and  Gest,  J.,  held :  "As  the  testatrix  died  within 
thirty  days  after  the  execution  of  her  will,  the  charitable  bequests  and 
devises  are  void"  under  this  section  of  the  act.  McNulty's  Est.,  29  Dist. 
709. 

A  bequest  in  trust  to  use  the  income  for  the  care  of  a  cemetery  lot 'is 
a  charitable  bequest  under  the  Act  of  May  26,  1891  (P.  L.  119),  and  is 
void  where  testator  died  less  than  thirty  days  after  making  his  will 
under  Section  6  of  the  Wills  Act  of  1917.  Eby's  Est,  30  Dist. 
338,  37  Lane.  329.  See  Channon's  Est.,  28  Dist.  479  affirmed  in  266  Pa. 
417,  109  Atl.  756. 

223.  EMBLEMENTS,  CROPS,  RENTS  AND  PERIODI- 

CIAL  PAYMENTS  ACCRUING  TO  TENANTS 
FOR  LIFE  AND  OTHERS. 

SECTION  7.  The  emblements  or  crops  growing  on  lands  held  by 
a  widow  in  dower,  or  by  any  tenant  for  life,  may  be  disposed  of 
by  will  as  other  personal  estate.  Rents  and  other  periodical  pay- 
ments accruing  to  any  tenant  for  life,  or  to  any  other  person  en- 
titled under  the  laws  of  this  commonwealth  regulating  the  descent 
and  partition  of  real  estate,  may,  so  far  as  the  same  may  have  ac- 
crued on  the  day  of  death  of  such  tenant  for  life,  or  other  person, 
be  disposed  of  by  will,  in  like  manner. 

NOTE. — This  is  Section  5  of  the  Act  of  1833,  4  Purd.  5120,  with  one 
change.  The  draft  prepared  by  the  Commissioners  in  1832  read,  "The 
emblements  or  crops."  The  Act  of  1833  reads,  "The  emblements  of 
crops."  The  Act  of  1833  reads,  "The  emblements  of  crops."  This  is  ev- 
idently a  clerical  or  typographical  error.  The  original  reading  is  restored. 

The  Commissioners  in  1832  reported  that  they  had  incorporated  in  Sec- 
tion 5  a  part  of  the  Statute  of  20  Henry  III,  Chapter  2,  relating  to  widows, 
and  added  a  power  to  all  life  tenants  to  dispose  of  by  will  of  crops,  rents, 
etc. 

224.  TESTAMENTARY  GUARDIANS  APPOINTED  BY 

FATHER. 

SECTION  8.  (a)  Every  person  competent  to  make  a  will,  being 
the  father  or  adopting  father  of  any  minor  child  unmarried,  may 
appoint  a  testamentary  guardian  for  such  child  during  his  or  her 
minority,  or  for  any  shorter  period:  Provided,  That  such  testa- 
mentary guardian  shall  not  be  entitled  to  the  custody  of  the  per- 
son of  such  child  unless  the  mother  or  adopting  mother,  if  surviv- 
ing, shall  relinquish  such  custody,  or  unless  the  best  interests  of 
the  child  shall  require  that  such  surviving  mother  or  adopting 
mother  should  not  retain  the  custody  of  the  person  of  such  child. 


WILLS  ACT— SECTION  8  (a),  (6)  137 

NOTE. — This  is  founded  on  Section  4  of  the  Act  of  April  8,  1833,  4  Purd. 
5151,  as  amended  by  the  Act  of  April  15,  1915,  P.  L.  124,  7  Purd.  7767.  It  is 
altered  so  as  to  distinguish  between  guardianship  of  the  person  and  of  the 
estate,  giving  the  father  the  right  to  appoint  a  guardian  but  making  the 
question  of  the  custody  of  the  person  depend  upon  the  consent  of  the 
mother  and  the  best  interests  of  the  child.  Provisions  to  include  adopted 
children  have  been  added. 

The  provision  as  to  appointment  of  a  guardian  by  the  mother  is  omitted 
from  this  clause  and  covered  by  the  next. 

The  specific  inclusion  of  adopted  children  in  this  section  of  the  act  was 
held  to  be  persuasive  of  an  intent  not  to  include  adopted  children  within 
the  purview  of  Section  21  of  the  Wills  Act  so  as  to  revoke  a  will  as  to 
those  adopted  since  its  making  by  the  adopting  parent.  Boyd's  Est.,  50 
Pa.  C.  C.  163,  10  West,  47,  affirmed  in  270  Pa.  504. 

Under  this  section  a  grandparent  has  no  authority  to  appoint  a  testa- 
mentary guardian  for  his  grandchild.  The  act  gives  no  persons  other 
than  the  parents,  natural  or  adopting,  such  power  to  appoint  a  testamen- 
tary guardian.  But  where  such  grandparent  appoints  by  his  will  a  certain 
person  as  "guardian"  of  a  grandchild  who  is  made  a  beneficiary,  "hereby 
empowering  him  to  have  full  power  and  authority  to  receive  the  said 
bequests,"  such  appointee  will  be  considered  as  a  trustee  for  the  purposes 
expressed  in  the  will  and  as  such  will  be  entitled  to  the  control  of  the 
bequests  to  the  exclusion  of  a  lawfully  appointed  guardian,  who,  however, 
has  standing  to  compel  the  trustee  to  enter  security  or  do  such  other 
things  as  in  the  opinion  of  the  court  may  be  necessary  for  the  protection 
of  the  minor's  estate.  McLain's  Est.,  I  Wash.  220. 

225.     APPOINTMENT  BY  MOTHER. 

(&)  Every  person  competent  to  make  a  will,  being  the  mother 
or  adopting  mother  of  any  minor  child  unmarried,  may  appoint  a 
testamentary  guardian  for  such  child  during  his  or  her  minority, 
or  for  any  shorter  period,  whenever  the  father  or  adopting  father 
of  such  child  shall  be  deceased  and  has  not  appointed  such  a 
guardian.  Such  mother  or  adopting  mother,  who  shall  leave  to 
such  child  an  estate,  either  real  or  personal,  may  appoint  a  testa- 
mentary guardian  for  such  estate  of  the  child,  whether  the  father 
or  adopting  father  of  such  child  shall  be  living  or  dead,  and 
whether  he  shall  or  shall  not  have  appointed  a  testamentary  guard- 
ian for  such  child.  Whenever  the  father  or  adopting  father  of 
such  child  has  for  one  year  or  upwards,  immediately  preceding 
the  death  of  the  mother  or  adopting  mother,  wilfully  neglected  or 
refused  to  provide  for  such  child,  such  mother  or  adopting 
mother,  who  shall  leave  to  such  child  an  estate,  either  real  or 
personal,  may  appoint  a  testamentary  guardian  for  such  child.* 

*The  portion  in  italics  was  added  by  the  amendatory  Act  of  June  12, 
(P.  L.  443-) 


138  WILLS  ACT— SECTION  8  (fe),   (c) 

NOTE: — This  is  founded  on  Sections  i  and  2  of  the  Act  of  June  10,  1881, 
P.  L.  96,  4  Purd.  5152;  the  Act  of  April  15,  1915,  P.  L.  124,  5  Purd.  5887; 
and  the  Act  of  April  21,  1915,  P.  L.  145,  5  Purd.  5887,  and  involves  the 
repeal  of  these  acts. 

The  language  of  the  Act  of  April  15,  1915,  giving  to  "the  father  or  the 
mother"  the  right  to  devise  the  custody  of  a  minor  child  in  all  case*,  leaves 
it  doubtful  whether,  the  father  having  died  appointing  a  guardian,  the 
mother  may  also  appoint  a  general  guardian  by  her  will,  and  vice  versa. 

Provisions  to  include  adopted  children  have  been  added.  The  provision 
that  a  mother,  appointed  guardian  by  her  husband's  will,  may  appoint  a 
successor,  has  been  omitted  as  unnecessary. 

The  specific  inclusion  of  adopted  children  in  this  section  of  the  act  was 
held  to  be  persuasive  of  an  intent  not  to  include  adopted  children  within 
the  purview  of  Section  21  of  the  Wills  Act  so  as  to  revoke  a  will  as  to 
those  adopted  since  its  making  by  the  adopting  parent.  Boyd's  Est.,  50 
Pa.  C.  C.  163,  10  West.  47,  affirmed  in  270  Pa.  504. 

Under  this  section  a  grandparent  has  no  authority  to  appoint  a  testa- 
mentary guardian  for  his  grandchild.  This  act  gives  no  persons  other  than 
the  parents,  natural  or  adopting,  such  power  to  appoint  a  testamentary 
guardian.  But  where  such  grandparent  appoints  by  his  will  a  certain 
person  as  "guardian"  of  a  grandchild  who  is  made  a  beneficiary,  "hereby 
empowering  him  to  have  full  power  and  authority  to  receive  the  said 
bequests,"  such  appointee  will  be  considered  as  a  trustee  for  the  purposes 
expressed  in  the  will  and  as  such  will  be  entitled  to  the  control  of  the 
bequest  to  the  exclusion  of  a  lawfully  appointed  guardian,  who,  however, 
has  standing  to  compel  the  trustee  to  enter  security  or  do  such  other 
things  as  in  the  opinion  of  the  court  may  be  necessary  for  the  protection 
of  the  minor's  estate.  McLain's  Est.,  i  Wash.  220. 

226.  FORFEITURE  OF  RIGHT  BY  NEGLECT  OF 
PARENTAL  DUTY. 

(c)  No  father  who  shall  have,  for  one  year  or  upwards  pre- 
vious to  his  death,  wilfully  neglected  or  refused  to  provide  for 
his  child  or  children,  and  no  mother  who  shall  have,  for  a  like 
period,  deserted  her  child  or  children  or  failed  to  perform  her 
parental  duties,  shall  have  the  right  to  appoint  any  testamentary 
guardian  for  such  child  or  children. 

NOTE. — This  is  Section  6  of  the  Act  of  May  4,  1855,  P.  L.  431,  4  Purd. 
5152,  omitting  the  words  "as  aforesaid"  before  the  words  "for  one  year 
or  upwards,"  and  adding  a  corresponding  provision  as  to  the  mother. 
Section  I  of  the  act  of  May  25,  1887,  P.  L.  264,  4  Purd.  5152,  giving  the 
mother  a  right  to  appoint  a  guardian  in  case  of  desertion  by  the  husband, 
is  superseded  by  clause  (b)  supra,  and  should  be  repealed. 


WILLS  ACT— SECTIONS  9-10  139 

227.  WILLS  TO  BE  CONSTRUED  AS  IF  EXECUTED 

IMMEDIATELY  BEFORE  THE  DEATH  OF 
THE  TESTATOR. 

SECTION  9.  Every  will  shall  be  construed,  with  reference  to  the 
real  and  personal  estate  comprised  in  it,  to  speak  and  take  effect 
as  if  it  had  been  executed  immediately  before  the  death  of  the 
testator,  unless  a  contrary  intention  shall  appear  by  the  will. 

NOTE:— This  is  Section  i  of  the  Act  of  June  4,  1879,  P.  L.  88,  4  Purd. 
5144,  which  was  declaratory  of  the  common  law  rule  as  to  personal  prop- 
erty, and  was  copied  from  the  statute  of  7,  William  IV  and  I  Viet, 
Chapter  26,  Section  24;  8  Rev.  Stat.  34. 

The  Act  of  1879  "was  enacted  to  complete  what  had  only  been  par- 
tially effected  by  the  Act  of  1833."  Opinion  of  Clark,  J.,  in  Fidelity  Ins.  T. 
&  S.  D.  Co.'s  Appeal,  108  Pa.  492,  499.  See  also,  Williams  v.  Brice,  201 
Pa.  595,  597- 

Under  the  Act  of  June  4,  1879,  P.  L.  88  and  this  section  of  the  Wills 
Act,  the  general  rule  is  that  a  will  speaks  from  the  death  of  the  testator, 
and  legacies  are  to  be  satisfied  out  of  the  property  which  he  owns  at  that 
time.  This  rule  does  not  apply  where  a  contrary  intention  appears  by 
the  will,  as,  for  example,  where  the  testator  is  the  owner  of  a  particular 
thing  at  the  time  of  the  making  of  his  will,  and  bequeaths  it  by  language 
which  shows  that  he  intends  the  gift  to  apply  alone  to  the  particular  thing. 
The  legacy  is  then  called  "specific"  and  where,  prior  to  his  death,  the 
testator  has  disposed  of  the  subject  matter,  the  legacy  is  adeemed  and 
nothing  passes  under  the  gift.  Thus,  where  testator,  at  the  time  of  the 
execution  of  his  will,  was  the  owner  of  a  yacht,  which  he  bequeathed  as 
follows :  "I  give  and  bequeath  unto  my  nephew,  my  yacht,  with  all  its 
furnishings,"  and  subsequently  he  sold  the  yacht,  and  later  puchased  a 
one-third  interest  in  another  yacht,  which  he  owned  at  the  time  of  his 
death,  it  was  held,  that  the  language  of  the  will  clearly  applied  to  the  yacht 
which  the  testator  owned  at  the  time  of  the  execution  of  the  will,  and, 
having  disposed  of  it  before  his  death,  the  legacy  was  adeemed.  Annear's 
Est.,  29  Dist.  44. 

228.  AFTER  ACQUIRED  REAL  ESTATE  TO  PASS  BY 

GENERAL  DEVISE. 

SECTION  10.  The  real  estate  acquired  by  a  testator  after  mak- 
ing his  will  shall  pass  by  a  general  devise,  unless  a  contrary  inten- 
tion be  manifest  on  the  face  of  the  will. 

NOTE. — This  is  Section  10  of  the  Act  of  1833,  4  Purd.  5139,  which  is 
similar  to  Section  23  of  the  Statute  of  7  William  IV  and  I  Viet,  Chapter 
26.  It  has  been  retained,  although  it  might  be  considered  unnecessary  in 
view  of  the  broader  provisions  of  the  Act  of  1879,  embodied  in  the  last 
preceding  section. 


140  WILLS  ACT— SECTION  11 

229.  GENERAL  DEVISE  OR  BEQUEST  TO  OPERATE 
AS  EXECUTION  OF  GENERAL  POWER  OF 
APPOINTMENT. 

SECTION  ii.  A  general  devise  of  the  real  estate  of  the  testator, 
or  of  the  real  estate  of  the  testator  in  any  place  or  in  the  occupa- 
tion of  any  person  mentioned  in  his  will,  or  otherwise  described 
in  a  general  manner,  shall  be  construed  to  include  any  real  estate, 
or  any  real  estate  to  which  such  description  shall  extend,  as  the 
case  may  be,  which  he  may  have  power  to  appoint  in  any  manner 
he  may  think  proper,  and  shall  operate  as  an  execution  of  such 
power,  unless  a  contrary  intention  shall  appear  by  the  will.  In 
like  manner  a  bequest  of  the  personal  estate  of  the  testator,  or 
any  bequest  of  personal  property  described  in  a  general  manner, 
shall  be  construed  to  include  any  personal  estate  or  any  personal 
estate  to  which  such  description  shall  extend,  as  the  case  may  be, 
which  he  may  have  power  to  appoint  in  any  manner  he  may  think 
proper,  and  shall  operate  as  an  execution  of  such  power,  unless 
a  contrary  intention  shall  appear  by  the  will. 

NOTE. — This  is  Section  3  of  the  Act  of  1879,  4  Purd.  5145-6.  See  the 
note  to  section  9  of  the  present  draft. 

Section  4  of  the  Act  of  1879,  4  Purd.  5146,  provides:  "This  act  shall 
operate  upon  and  go  into  effect  as  to  the  wills  of  all  persons  who  shall 
die  after  the  date  of  this  act."  This  is  covered  by  the  general  section  of 
the  present  act  fixing  the  time  when  the  act  shall  go  into  effect  (See 
252  infra.) 

Under  a  will  where  one  had  a  general  power  of  appointment  and  it 
was  held  that  he  could  appoint  to  certain  persons  or  classes  of  persons  in 
such  shares  as  another  person  might  nominate,  the  court  dismissed  ex- 
ceptions to  an  adjudication  by  Gest,  J.,  wherein  he  said: 

"The  power  conferred  by  the  will  of  Sarah  Ann  Duffy  upon  Rosalie 
Gertrude  Wilson  was  a  general  power  to  appoint  this  property  by  her  will 
to  such  person  or  persons  and  for  such  estate  or  estates  as  she  should  direct, 
limit  and  appoint,  and,  of  course  had  Rosalie  Gertrude  Wilson  designated 
certain  hospitals  by  name  as  the  beneficiaries,  there  could  be  no  question 
that  the  power  was  validily  exercised.  A  general  power  such  as  this 
approaches  so  near  to  absolute  ownership  that  she  might  have  appointed 
the  estate  to  her  executor  to  be  disposed  of  as  part  of  her  own,  and 
if  she  had  failed  to  exercise  the  power  specifically  it  would  neverthe- 
less, have  been  executed  by  force  of  the  Wills  Act  of  June  7,  1917,  Sec- 
tion n,  P.  L.  403,  which  re-enacted  the  Act  of  June  4,  1879,  Section  3, 
(P.  L.  88)  n,  Duffy's  Est.,  49  Pa.  C.  C.  30,  29  Dist.  379. 

The  auditing  judge   (Gest,  J.)   said  in  his  adjudication: 

"Amelia  R.  Sparks  died  on  November  2,  1914,  leaving  a  will  by  the 
tenth  paragraph  of  which  she  bequeathed  to  her  trustees  premises  No.  21 


WILLS  ACT— SECTIONS  11-12  141 

Wood  Street,  Camden,  N.  J.,  forty  shares  of  North  Pennsylvania  Railroad 
stock,  five  shares  of  Philadelphia  Traction  Company,  and  a  $1,000  bond  of 
the  Delaware  and  Bound  Brook  Railroad,  in  trust  to  pay  the  net  income 
therefrom  to  her  son,  Edward  K.  Sparks,  for  the  term  of  his  natural  life, 
and  from  and  after  his  decease,  to  pay  over,  assign,  and  transfer  the 
principal  in  such  way  and  manner  as  he  may  by  last  will  and  testament 
direct,  limit  and  appoint,  or  in  default  of  appointment,  to  those  who  would 
be  entitled  to  the  same  if  he  had  died  seized  and  possessed  of  the  same 
intestate. 

"And  by  the  seventeenth  paragraph  of  her  will  she  provided  as  follows: 
'I  order  and  direct  that  all  devises  and  bequests  and  all  payments  of 
income  herein  given  shall,  to  the  fullest  extent  permitted  by  the  law,  be 
transferred  or  paid  free  and  clear  of  the  debts,  contracts,  engagements, 
alienations  and  anticipations  of  any  beneficiary,  and  free  and  clear  of  all 
levies,  attachments,  executions  and  sequestrations.' 

"The  account  is  filed  of  the  stocks  and  bonds  so  bequeathed  and  awarded 
to  the  accountants  by  the  adjudication  of  Anderson,  J.,  on  November  23, 
1916,  and  schedule  thereon,  and  is  filed  by  reason  of  the  death  of  Edward 
K.  Sparks  on  December  10,  1920,  so  that  the  trust  then  terminated. 

"Edward  K.  Sparks  left  him  surviving  a  widow,  Julia  M.  Sparks  and  a 

will  dated  November  ,  1916,  of  which  she  is  executrix  and  by  which 

he  provided :  'I  direct  that  all  my  just  debts  and  funeral  expenses  be  paid 
as  soon  as  conveniently  may  be  after  my  decease. 

"  'I  give,  devise  and  bequeath  all  of  my  estate,  real  and  personal,  unto 
my  wife,  Julia  M.  Sparks,  absolutely,  if  she  shall  survive  me,  otherwise, 
I  give  and  devise  the  same  to  my  son,  Charles  Aplin  Sparks.' 

"The  question  presented  is  whether,  under  the  will  of  Edward  K. 
Sparks,  executing  the  power  of  appointment  given  to  him,  the  award  of 
the  principal  of  the  trust  estate  should  be  made  to  Julia  M.  Sparks  in- 
dividually as  the  object  of  the  power,  or  whether  it  should  be  made  to 
Julia  M.  Sparks  as  executrix  of  the  will  of  Edward  K.  Sparks." 

And  LAMORELLE,  P.  J.,  in  dismissing  exceptions,  held  inter  alia : 

"The  three  exceptions  raise  but  one  question :  the  propriety  of  awarding 
the  appointed  estate  to  the  executrix  of  the  will  of  the  donee." 

"In  the  present  case  the  donee's  exercise  of  the  power  is  by  virtue  of 
Section  u  of  the  Wills  Act  of  June  7,  1917,  P.  L.  415  (which  repealed 
the  Act  of  June  4,  1879,  P.  L.  88),  in  a  will  where,  following  a  general 
direction  to  pay  his  debts,  he  left  his  estate  to  his  wife. 

"We  cannot  distinguish  the  cases,  and,  therefore,  the  exceptions  are 
dismissed,  without  prejudice,  however,  to  the  rights  of  all  parties  in 
interest  which  are  to  be  determined  in  manner  and  form  as  hereinbefore 
set  forth."  Spark's  Est.,  30  Dist.  815. 

230.     DEVISES  OF  REAL  ESTATE  TO  PASS  WHOLE 
ESTATE  OF  TESTATOR. 

SECTION  12.  All  devises  of  real  estate  shall  pass  the  whole 
estate  of  the  testator  in  the  premises  devised,  although  there  be 


142  WILLS  ACT— SECTIONS  12-13-14 

no  words  of  inheritance  or  of  perpetuity,  unless  it  appear  by  a 
devise  over,  or  by  words  of  limitation,  or  otherwise,  in  the  will, 
that  the  testator  intended  to  devise  a  less  estate. 

NOTE. — This  is  Section  9  of  the  Act  of  1833,  4  Purd.  5137-8.  Before 
that  Act,  a  devise  did  not  carry  a  fee  unless  there  were  words  of  inherit- 
ance or  other  language  showing  an  intention  that  a  fee  should  pass.  The 
Commissioners  in  1832  reported  that  this  section  coincided  with  the  im- 
provement made  in  this  respect  in  many  other  states. 
t. — 

See  Rosenfield  v.  Wahal,  48  Pa.  C.  C.  362. 

231.  DEVISE  OF  REAL  ESTATE  IN  FEE  TAIL  TO 

BE    CONSTRUED    AS    ESTATE    IN    FEE 
SIMPLE. 

SECTON  13.  Whenever  by  any  devise  an  estate  in  fee  tail  would 
be  created  according  to  the  common  law  of  this  state,  such  devise 
shall  be  taken  and  construed  to  pass  an  estate  in  fee  simple,  and  as 
such  shall  be  inheritable  and  freely  alienable. 

NOTE.— This  is  Section  i  of  the  Act  of  April  27,  1855,  P.  L.  368,  2  Purd. 
1485,  altered  so  as  to  apply  to  wills  only.  The  Act  of  1855  should  not  be 
repealed  so  far  as  it  relates  to  deeds. 

232.  CONSTRUCTION   OF   "DIE    WITHOUT    ISSUE" 

AND   SIMILAR  PHRASES. 

SECTION.  14.  In  any  devise  or  bequest  of  real  or  personal  es- 
tate, the  words,  "die  without  issue,"  or  "die  without  leaving  issue," 
or  "have  no  issue,"  or  any  other  words  which  may  import  either 
a  want  or  failure  of  issue  of  any  person  in  his  lifetime,  or  at  the 
time  of  his  death,  or  an  indefinite  failure  of  his  issue,  shall  be 
construed  to  mean  a  want  or  failure  of  issue  in  the  lifetime  or  at 
the  death  of  such  person,  and  not  an  indefinite  failure  of  his  issue, 
unless  a  contrary  intention  shall  appear  by  the  will  in  which  such 
devise  or  bequest  is  made. 

NOTE. — This  is  Section  i  of  the  Act  of  July  9,  1897,  P.  L.  213,  4  Purd. 
5146-8,  altered  so  as  to  apply  to  devises  and  bequests  only.  The  Act  of 
1897,  so  far  as  it  relates  to  gifts  and  grants,  is  not  to  be  repealed.  Section 
2  of  that  act,  limiting  its  application  to  instruments  made  after  its  passage, 
is  covered  by  Section  26  of  the  new  act.  (See  252  infra.) 

See  English's  Est,  270  Pa.  i,  112  Atl.  913. 

"A  careful  reading  of  this  act  will  at  once  disclose  that  it  gave  a  statu- 
tory meaning  to  such  words  as  'die  without  issue*  or  'die  without  leaving 
issue'  or  any  words  which  may  import  either  a  want  or  failure  of  issue 


WILLS  ACT— SECTIONS   14-15  (a)  143 

of  any  person  in  his  lifetime  or  at  the  time  of  his  death,  or  an  indefinite 
failure  of  his  issue,  and  that  they  shall  be  construed  to  mean  a  want  or 
failure  of  issue  in  the  lifetime  or  at  the  death  of  the  taker,  and  not  an 
indefinite  failure  of  his  issue,  unless  a  contrary  intention  appear  from  the 
will.  The  statute  has  reference  only  to  these  two  possible  constructions 
of  such  words,  viz :  a  failure  of  issue  at  the  death  of  the  taker  or  an 
indefinite  failure,  of  his  (the  taker's)  issue  and  has  no  reference  to  words 
which  may  imply  a  definite  failure  of  issue  either  in  the  lifetime  of  the 
testator  or  at  the  death  of  the  taker,  the  law  of  construction  in  the  latter 
case  has  not  been  changed  by  this  statute,  and  remains  as  it  was  before 
this  act  of  assembly  was  passed."  Fox,  J.,  in  Segelbaum's  Est,  24  Dauphin 
274. 

233.  LAPSED  AND  VOID  DEVISES  AND  LEGACIES 
DEVISE  OR  LEGACY  IN  FAVOR  OF  LINEAL 
DESCENDANTS  NOT  TO  LAPSE  BY  DEATH. 

SECTION  15.  (a)  No  devise  or  legacy  in  favor  of  a  child  or 
children,  or  other  lineal  descendant  or  descendants  of  any  testator, 
whether  such  children  or  descendants  be  designated  by  name  or 
as  a  class,  shall  lapse  or  become  void  by  reason  of  the  decease  of 
such  legatee  or  devisee  in  the  lifetime  of  the  testator,  if  such  de- 
visee or  legatee  shall  leave  issue  surviving  the  testator ;  but  such 
devise  or  legacy  shall  be  good  and  available  in  favor  of  such  sur- 
viving issue,  with  like  effect  as  if  such  devisee  or  legatee  had  sur- 
vived the  testator,  unless  the  testator  shall  in  the  will  direct  other- 
wise. 

NOTE.— This  is  Section  12  of  the  Act  of  April  8,  1833,  P.  L.  250,  4  Purd. 
5142,  which  was  founded  on  the  Act  of  March  19,  1810,  P.  L.  96,  5  Sm.  L. 
112,  modified  so  as  to  conform  to  the  phraseology  of  the  clause  next 
following. 

Section  12  of  the  Act  of  1833  has  been  judicially  construed  to  include 
legacies  to  children  or  grandchildren  as  a  class,  the  principle  of  Gross's 
Estate,  10  Pa.  360,  not  having  been  applied  to  this  section;  see  Bradley's 
Estate,  166  Pa.  300.  The  phraseology,  however,  has  been  changed  by  way 
of  precaution  in  order  to  prevent  any  question  upon  the  subject. 

An  adopted  child  of  a  son  of  testator  was  held  entitled  to  distribution 
under  the  Wills  Act  of  1917,  where  the  son  died  subsequent  to  the  execu- 
tion of  the  will,  but  prior  to  testator's  death.  The  will  provided :  "All 
the  rest  and  residue  of  my  estate,  of  whatsoever  nature  and  wheresoever 
situate,  at  the  time  of  my  decease,  I  give,  devise  and  bequeath  to  my  be- 
loved children  who  are  living  at  the  date  hereof,  their  heirs  and  assigns, 
share  and  share  alike.  The  child  or  children  of  any  of  my  children  now 
living,  but  who  die  before  me,  to  receive  the  share  or  portion,  its  or  their 
parents  would  have  received  had  he  or  she  been  living  at  the  time  of  my 
death."  "Issue,"  in  Section  15  (a)  and  "child  or  children"  in  Section 


144  WILLS  ACT— SECTION  15  (a),  (fr) 

16  (fr)  of  the  Wills  Act  of  1917  are  necessarily  synonymous  in  the  re- 
stricted sense  that  their  rights  of  inheritance  are  the  same,  and  all  that 
is  required  by  the  latter  subsection  is  that  "child  or  children  shall  be  con- 
strued to  include  adopted  children."  This  construction  is  necessary  to 
carry  into  effect  the  clearly  expressed  legislative  intent.  Hill's  Estate,  69 
P.  L.  J.  177,  30  Dist.  477,  s.  c.  69  P.  L.  J.  348. 

Testator  left  a  will  directing  that  this  estate  should  be  "equally  divided 
among  my  children,  their  heirs  and  assigns,"  A  son  died  before  the  tes- 
tator leaving  issue  and  a  widow.  Held,  that  the  widow  could  not  par- 
ticipate because  not  embraced  within  the  words  "heirs  and  assigns,"  which 
are  words  of  limitation.  Schaeffer,  P.  J.,  said:  "By  no  authority  known 
to  the  court  have  'heirs  and  assigns'  as  here  used,  been  construed  as 
words  of  substitution  and  thus  to  embrace  a  widow  as  an  heir.  They 
are  here  used  merely  as  words  of  limitation — they  limit  an  absolute  estate 
to  children.  As  such,  consequently,  they  preclude  the  widow's  coming  in 
on  the  legacy  by  substitution ;  and  since  the  Wills  Act  of  1917,  which 
saves  the  legacy  from  lapsing,  restricts  distribution  of  it  to  this  son's 
issue,  the  court  sees  no  way  by  which  this  widow  can  participate.  For 
these  reasons  she  will  not  be  included  in  the  distribution."  Wagenhorst's 
Estate,  12  Berks  89. 

See  Gamier  v.  Gamier,  16  North  205;  Moore's  Est.,  30  Dist.  152,  68 
P.  L.  J.  670,  15  Del.  367. 

234.  DEVISE  OR  LEGACY  IN  FAVOR  OF  BROTHERS 
AND  SISTERS  AND  THEIR  CHILDREN  NOT 
TO  LAPSE  BY  DEATH,  IN  CERTAIN  CASES. 

(&)  Where  any  testator  shall  not  leave  any  lineal  descendants 
who  would  receive  the  benefit  of  any  lapsed  or  void  devise  or 
legacy,  no  devise  or  legacy  made  in  favor  of  a  brother  or  sister, 
or  of  brothers  or  sisters  of  such  testator,  or  in  favor  of  the  chil- 
dren of  a  brother  or  sister  of  such  testator,  whether  such  brothers 
or  sisters  or  children  of  brothers  or  sisters  be  designated  by  name 
or  as  a  class,  shall  be  deemed  or  held  to  lapse,  or  become  void  by 
reason  of  the  decease  of  such  devisee  or  legatee  in  the  lifetime  of 
the  testator,  if  such  devisee  or  legatee  shall  leave  issue  surviving 
the  testator ;  but  such  devise  or  legacy  shall  be  good  and  available 
in  favor  of  such  surviving  issue,  with  like  effect  as  if  such  devisee 
or  legatee  had  survived  the  testator,  unless  the  testator  shall  in  the 
will  direct  otherwise. 

NOTE. — The  Act  of  May  6,  1844,  Section  2,  P.  L.  565,  saved  from  lapse 
devises  and  legacies  "made  in  favor  of  a  brother  or  sister  or  the  children 
of  a  deceased  brother  or  sister  of  any  testator,  such  testator  not  leaving 
any  lineal  descendants."  It  having  been  held  in  Gross's  Estate,  10  Pa.  360, 
and  Guenther's  Appeal,  4  W.  N.  C.  41,  that  this  act  did  not  apply  to  a  be- 
quest to  the  legatees  as  a  class,  the  Act  of  July  12,  1897,  P.  L.  256,  4  Purd. 
5143-4,  amended  the  Act  of  1844  by  expressly  providing  for  class  legacies. 


WILLS  ACT— SECTION  15  (&)  145 

The  Act  of  1897  also  amended  the  law  by  striking  out  the  word  "de- 
ceased," so  that  the  provisions  of  the  act  should  apply  to  the  children  of 
brothers  or  sisters,  whether  or  not  their  parent  was  deceased,  a  require- 
ment which  seems  irrelevant. 

The  section  as  now  reported  follows  the  language  of  the  Act  of  1897, 
but  further  amends  it  by  limiting  it  to  cases  where  the  testator  "shall  not 
leave  any  lineal  descendants  who  would  receive  the  benefit  of  any  lapsed 
or  void  devise  or  legacy."  This  was  probably  the  legislative  intent,  for 
the  provision  saving  from  lapse  legacies  to  certain  legatees  should  not 
depend  upon  the  mere  fact  that  the  testator  did  not  leave  lineal  descend- 
ants, unless  those  descendants  would  profit  by  the  lapse  or  failure  of  the 
legacies.  It  was  probably  assumed  by  the  legislature  heretofore  that  if 
the  testator  left  lineal  descendants  they  would  be  included  among  his  re- 
siduary devisees  or  legatees,  and  thus  receive  the  benefit  of  the  lapsed 
devises  and  legacies,  but  this  is  not  necessarily  the  case. 

The  Commissioners  have  not  deemed  it  expedient  to  recommend  any 
further  extension  of  the  law  in  this  regard.  An  examination  of  the  stat- 
utes of  other  states  discloses  a  great  variety  of  legislative  policy — some 
statutes  going  so  far  as  to  save  every  legacy  from  lapse  where  the  legatee 
predeceases  the  testator.  But  statutes  such  as  the  present  are  really 
canons  of  construction,  intended  to  carry  out  an  assumed  testamentary 
intent  when  it  is  not  expressed,  and  there  is  great  danger  of  carrying  too 
far  rules  which  import  into  a  written  will  a  meaning  which  is  more  or 
less  artificial. 

The  term  "issue"  as  used  in  this  section  of  the  Wills  Act  embraces 
adopted  children.  Schaeffer,  P.  J.,  held,  "When  the  will  was  made,  on 
November  12,  1917,  giving  a  fourth  share  of  the  estate  to  the  children  of 
the  deceased  brother,  Howard,  Stanley  Kirby,  one  of  them,  was  living 
and  had  legally  adopted  as  his  son  the  said  Raymond  V.  Kirby,  as  appears 
by  the  decree  of  the  Court  of  Common  Pleas  of  Lancaster  County,  dated 
January  30,  1915 — almost  two  years  before.  It  is  to  be  assumed,  there- 
fore, that  when  she  made  her  will,  testatrix  was  aware  of  this  adoption, 
and  in  any  event,  it  is  clear  that  Stanley  Kirby,  as  one  of  the  children 
of  the  deceased  brother  Howard,  was  at  the  date  of  the  will  a  member 
of  the  class  of  children  of  the  deceased  brother  Howard.  *  *  *  The 
question  is,  whether  the  term  'issue'  in  the  act  is  meant  to  embrace 
adopted  children.  The  court  sees  no  reason  for  excluding  them.  To  so 
exclude  them,  it  seems,  would  be  against  the  trend  of  all  our  late  legis- 
lation. Under  the  Intestate  Act  of  1917,  for  example,  adopted  children 
are  given  equal  rights  of  inheritance  with  other  children,  from  and  through 
whom  they  inherit.  Here  the  legislative  intent  was  clearly  to  put  adopted 
children  on  the  same  plane  as  natural  children;  and  this  intent  is  fur- 
ther evidenced  in  the  Act  of  June  20,  1919,  P.  L.  521,  relating  to  inheritance 
taxes,  where  adopted  children  for  purposes  of  direct  taxation  are  put  in  the 
same  class  as  natural  children ;  or  in  other  words,  are  not  regarded  as 
collaterals.  So,  in  Section  16,  Clauses  (a)  and  (£)  of  the  Wills  Act  of 
1917;  and  so  running  through  all  our  late  acts  of  assembly.  Why,  there- 
fore, this  adopted  child  of  Stanley  Kirby  should  be  denied  the  right  of 
10 


146  WILLS  ACT— SECTION  15  (fe),  (c) 

his  father's  legacy  here  in  view  of  all  the  legislation  on  the  subject,  is 
not  clear  to  the  court;  and  until  some  authoritative  utterance  making  the 
reason  clear,  has  been  presented,  Raymond  V.  Kirby  will  be  allowed  to 
participate  in  this  distribution  as  the  child  of  the  deceased  nephew,  Stan- 
ley." Moore's  Estate,  30  Dist.  152,  68  P.  L.  J.  670,  15  Del.  367. 

Decedent  died  in  March,  1918,  and  by  her  will  disposed  of  the  residue 
of  her  estate  as  follows :  "That  the  same  shall  be  divided,  share  and  share 
alike,  amongst  all  my  nephews  and  nieces,  having  children  or  bodily  heirs 
(that  is  to  say,  that  such  nephews  and  nieces  having  no  children  shall  not 
inherit  under  this  will)."  Held,  that  a  nephew  dying  before  the  date  of 
the  will  never  became  a  member  of  the  class  and  his  children  cannot  par- 
ticipate; that  the  children  of  a  niece  dying  after  the  date  of  the  will 
participate;  and  that  the  granddaughter  of  a  deceased  nephew  within  the 
class  takes  the  share  of  her  parent,  since  the  Wills  Act  of  1917  does  not 
limit  to  children  the  right  to  take  the  share  of  a  deceased  legatee,  but  uses 
the  broader  term  "issue."  Fetherolf's  Est.,  No.  2,  29  Dist.  479,  12  Berks  62. 

Where  by  the  second  clause  of  her  will,  the  testatrix  provided : 

"I  give,  devise  and  bequeath  all  my  estate  of  whatsoever  and  where- 
soever situate  unto  my  sister  Margaret  Boeshore,  wife  of  Miller 
Howard  Boeshore,  and  my  brother  John  Frederick  W.  Stock,  in  equal 
shares,"  the  court  held,  "Under  the  second  section  of  the  will,  if  it  stood 
alone,  John  Frederick  W.  Stock  would  take  one-half  of  the  estate,  and 
although  Margaret  Boeshore  predeceased  the  testatrix,  she  left  issue, 
John  Jacob  Boeshore,  who  would  take  his  mother's  share,  the  other  one- 
half,  under  the  Wills  Act  of  June  7,  1917,  Sec.  15  (&),  P.  L.  403."  Stock's 
Est.,  49  Pa.  C.  C.  203,  29  Dist.  376. 

See  Gamier  v.  Gamier,  16  North  205. 

235.  LAPSED  AND  VOID  DEVISES  AND  LEGACIES 
TO  FALL  INTO  RESIDUE;  PROVISIONS 
WHERE  SUCH  LEGACIES  AND  DEVISES 
ARE  CONTAINED  IN  RESIDUARY  CLAUSE. 

(c)  Unless  a  contrary  intention  shall  appear  by  the  will,  such 
real  or  personal  estate  or  interests  therein  as  shall  be  comprised  or 
intended  to  be  comprised  in  any  devise  or  bequest  in  such  will 
contained,  which  shall  fail  or  be  void  by  reason  of  the  death  of 
the  devisee  or  legatee  in  the  lifetime  of  the  testator,  or  by  reason 
of  such  devise  or  bequest  being  contrary  to  law  or  otherwise  in- 
capable of  taking  effect,  or  which  shall  be  revoked  by  the  testator, 
shall  be  included  in  the  residuary  devise  or  bequest,  if  any,  con- 
tained in  such  will.  In  any  case  where  such  devise  or  bequest, 
which  shall  fail  or  be  void  or  shall  be  revoked  as  aforesaid,  shall 
be  contained  in  the  residuary  clause  of  such  will,  it  shall  pass  to 
and  be  divided  among  the  other  residuary  devisees  or  legatees,  if 
any  there  be,  in  proportion  to  their  respective  interests  in  such 
residue. 


WILLS  ACT— SECTION  15  (c)  147 

NOTE.— This  is  Section  2  of  the  Act  of  June  4,  1879,  P.  L.  88,  4  Purd. 
5145,  amended  so  as  to  make  it  plain  that  it  applies  to  personal  as  well  as 
real  estate,  by  including  revoked  devises  and  bequests,  and  by  the  addition 
of  the  last  sentence. 

This,  like  the  other  sections  of  the  Act  of  1879,  was  founded  on  the 
English  Statute  of  7  William  IV  and  i  Viet.,  Chapter  26. 

According  to  the  present  law,  residuary  gifts  which  are  void  or  fail  by 
lapse  pass  to  the  next  kin  or  heirs  and  not  to  the  other  residuary  legatees 
or  devisees.  The  Supreme  Court  in  Gray's  Estate,  147  Pa.  67,  75,  criti- 
cized this  rule  as  wrong  in  principle  and  subversive  of  the  great  canon  of 
construction,  viz,  the  carrying  out  of  the  intent  of  the  testator.f  In  Gor- 
gas's  Estate,  166  Pa.  269,  the  rule  was  followed  in  a  case  where  it  was 
apparent  from  the  language  of  the  will  that  the  testatrix  intended  not  to 
give  the  next  of  kin  any  interest  in  her  estate.  And  in  Wain's  Estate,  156 
Pa.  194,  the  rule  was  applied  in  the  case  of  a  revocation  of  a  residuary 
gift,  Mr.  Justice  Mitchell  repeating  his  criticism  made  in  Gray's  Estate. 
The  Commissioners  therefore  recommend  the  abolition  of  the  common 
law  rule  in  accordance  with  the  views  expressed  by  the  supreme  court. 

A  legacy  was  held  to  have  failed  and  was  distributed  as  a  part  of  the 
residuary  estate  where  the  legatee  after  a  legal  tender  of  the  money 
refused  to  accept  it.  Under  the  Wills  Act  of  1917,  clause  15  (c)  this 
legacy  was  "incapable  of  taking  effect."  "It  does  not  appear  to  need 
ny  argument  to  prove  that  a  legacy  cannot  be  forced  upon  any  person 
who  refuses  to  take  it,  and  if  it  is  refused  when  tendered,  that  it  has 
failed,  or  is  void,  by  reason  of  being  'incapable  of  taking  effect.'  Authority 
for  this  proposition  is  found  in  Wonsetler  v.  Wonsetler,  23  Super.  Ct.  321, 
where  it  is  said :  'While  the  bequest  vested  the  title  in  him,  his  refusal  to 
accept  would  leave  it  part  of  the  testator's  residuary  estate,'  and  see 
Cox  v.  Rodgers,  77  Pa.  160 ;  Tar  v.  Robinson,  158  Pa.  60,  and  Price's 
Est.  194  Pa.  135.  A  case  in  point  is  Peckham  v.  Newton,  4  Atl.  758 
(Rhode  Island),  where  there  was  a  bequest  of  a  five  thousand  dollar  bond 
which  was  declined  and  renounced,  and  the  Court  citing  Jarman  on  Wills 
(5  Am.  Ed.  Rand  &  T.)  365,  762,  said:  'A  residuary  gift  of  personal 
estate  carried  not  only  everything  not  in  terms  disposed  of,  but  everything 
that  in  the  event  turns  out  to  be  not  well  disposed  of.  A  presumption 
arises  for  the  residuary  legatee,  against  every  one  except  the  particular 
legatee;  for  the  testator  is  supposed  to  give  his  personalty  away  from  the 
former  only  for  the  sake  of  the  latter.' "  Trimble,  J.  In  Kane's  Estate, 
69  P.  L.  J.  820. 

fSee  Gamier  v.  Gamier,  16  North  205,  p.  215. 

Where  three  daughters  are  residuary  legatees,  the  fact  that  one  of  them 
resides  in  Germany  and  because  of  the  Trading  with  the  Enemy  Act  of 
October  6,  1917,  her  share  is  payable  to  the  Alien  Property  Custodian, 
does  not  cause  a  lapse  in  her  share  that,  under  this  section  of  the  act, 
such  share  is  divisable  between  the  remaining  daughters  the  sisters  of  the 
alien.  The  award  will  be  to  the  Alien  Property  Custodian  to  hold  for 
her  until  the  end  of  the  war.  Gregg's  Estate,  266  Pa.  189,  109  Atl.  177. 


148  WILLS  ACT— SECTION  15  (c) 

Testatrix  specifically  devised  certain  premises  to  her  husband  for  life, 
with  remainder  to  a  charitable  institution.  The  residue  of  her  estate  she 
devised  and  bequeathed  to  her  husband  for  life,  with  remainder  to  the 
Archbishop  of  Philadelphia  for  the  same  charitable  institution.  She  died 
within  thirty  days  after  the  execution  of  her  will,  so  that  the  charitable 
bequests  and  devises  were  void  under  the  Wills  Act  of  June  7,  1917,  Sec. 
6,  P.  L.  403.  The  husband  then  claimed  that  the  remainder  in  the  premises 
specifically  devised  to  him  for  life,  passed  to  him  in  fee,  under  the  Wills 
Act  of  1917,  Sec.  15  (c),  held,  "This  provision  of  the  new  act  was  clearly 
intended  to  abolish  the  common  law  rule  criticized  by  the  Supreme  Court  in 
Gray's  Estate,  147  Pa.  67,  that  where  the  residuary  estate  is  devised  to  or 
among  a  number  of  devisees,  and  the  devise  as  to  one  or  more  of  them 
lapses,  or  is  avoided  by  some  rule  of  law,  or  is  revoked,  an  intestacy  re- 
sulted as  to  that  share  under  the  former  rule.  The  obvious  intention  of 
the  act  was  to  introduce  the  principle  that  in  devises  of  this  nature  the 
void  or  revoked  share  is  to  be  divided  among  the  other  residuary  devisees 
in  proportion  to  their  respective  interests.  This  contemplates  the  case 
where  the  residuary  devisees  are  given  aliquot  shares  in  the  residue,  and 
not  to  a  case  like  the  present,  where  the  devisees  are  respectively  life 
tenant  and  the  remainderman  and  thus  given  estates  of  a  different  quality." 
Gest,  J.,  in  McNulty's  Estate,  29  Dist.  709. 

Testator,  after  disposing  of  his  personalty,  gave  his  real  estate  to  his 
wife  for  her  life.  In  a  residuary  clause  of  his  will  he  devised  to  two 
other  persons  all  of  his  estate  that  remained  at  the  death  of  his  wife,  but 
devised  to  her,  in  case  of  the  death  before  her  of  one  of  the  residuary 
devisees,  the  share  of  such  deceased  devisee.  Terry,  P.  J.,  in  holding 
that  under  Section  15  of  the  Wills  Act  of  June  7,  1917,  P.  L.  403,  the 
contingent  devise  to  the  wife  did  not  lapse  by  reason  of  her  death,  as  well 
as  that  of  said  devisee,  in  the  lifetime  of  the  testator,  but  passed  to  the 
other  residuary  devisee,  and  consequently  the  testator's  collateral  heirs 
had  no  standing  to  ask  for  partition  of  the  real  estate  devised,  said :  "An- 
other provision  in  said  subdivision  of  said  section  of  the  Wills  Act,  which 
is  new,  is  that  a  lapsed  or  void  devise  or  bequest  in  the  residuary  clause 
of  a  will  shall  pass  to  the  other  residuary  devisees  or  legatees.  The  tes- 
tator here,  in  such  clause  of  his  will,  provided  that  if  Allen  Miller,  one 
of  his  two  residuary  devisees,  died  before  his  wife,  she  should  have  Mil- 
ler's 'share'  of  the  estate.  Following  that  event  and  upon  her  death,  Fred 
Osterhout,  the  'other'  residuary  devisee  within  the  intendment  of  the 
aforesaid  provision  of  the  Wills  Act  of  1917,  took  his  mother's  interest, 
the  lapse  of  the  devise  to  her  being  thus  prevented.  The  petitioner 
claims  only  as  stated,  and  his  asserted  right  to  share  in  said  estate  rests 
solely  on  the  assumption  of  a  lapsed  devise — to  testator's  wife.  As  it 
did  not  lapse,  the  petitioner  has  no  interest  in  the  real  estate  in  controversy, 
and,  therefore,  no  standing  to  demand  its  partition."  Jackson's  Estate, 
28  Dist.  943,  68  P.  L.  J.  613. 


WILLS  ACT-^SECTION  16  (a),  (&)  149 

236.  DEVISE  OR  LEGACY  TO  CHILDREN  TO  IN- 

CLUDE ADOPTED  CHILDREN,— CHILDREN 
ADOPTED  BY  TESTATOR. 

SECTION  16.  (a)  Whenever  in  any  will  a  bequest  or  devise  shall 
be  made  to  the  child  or  children  of  the  testator,  without  naming 
such  child  or  children,  such  bequest  or  devise  shall  be  construed  to 
include  any  adopted  child  or  children  of  the  testator,  unless  a 
contrary  intention  shall  appear  by  the  will. 

NOTE. — This  is  a  new  clause,  introduced  in  conformity  to  the  provisions 
of  the  new  Intestate  Act  relating  to  inheritance  by  adopted  children. 

This  and  the  following  section  were  cited  to  show  that  since  the  legis- 
lature had  the  rights  of  adopted  children  constantly  in  mind,  their  omission 
from  Section  21  of  the  Wills  Act  was  intentional  and  that  it  was  not  in- 
tended to  include  after-adopted  children  within  its  provisions.  Boyd's  Es- 
tate, 50  Pa.  C.  C.  163,  10  West.  47;  affirmed  in  270  Pa.  504.  See  also 
Moore's  Est.,  30  Dist.  152,  68  P.  L.  J.  670,  15  Del.  367. 

237,  CHILDREN  ADOPTED  BY  DEVISEE  OR  LEGA- 

TEE. 

(b)  Whenever  in  any  will  a  bequest  or  devise  shall  be  made  to 
the  child  or  children  of  any  person  other  than  the  testator,  without 
naming  such  child  or  children,  such  bequest  or  devise  shall  be  con- 
strued to  include  any  adopted  child  or  children  of  such  other  per- 
son who  were  adopted  before  the  date  of  the  will,  unless  a  contrary 
intention  shall  appear  by  the  will. 

NOTE. — This  clause  is  also  new.  It  is  limited  to  the  case  of  children 
adopted  before  the  date  of  the  will  since  it  is  a  statutory  canon  of  con- 
struction referable  to  the  time  when  the  testator  makes  his  will.  An  ex- 
tension to  include  children  adopted  after  the  date  of  the  will  would  tend 
to  defeat  the  intention  of  the  testator. 

See  Moore's  Est.,  30  Dist.  152,  68  P.  L.  J.  670,  15  Del.  367.  Boyd's  Est, 
50  Pa.  C.  C.  163,  10  West  47  aff'd  in  270  Pa.  504. 

An  adopted  child  of  a  son  of  testator  was  held  entitled  to  distribution 
under  the  Wills  Act  of  1917,  where  the  son  died  subsequent  to  the  execu- 
tion of  the  will,  but  prior  to  testator's  death.  The  will  provided :  "All 
the  rest  and  residue  of  my  estate,  of  whatsoever  nature  and  wheresoever 
situate,  at  the  time  of  my  decease,  I  give,  devise  and  bequeath  to  my  be- 
loved children  who  are  living  at  the  date  hereof,  their  heirs  and  assigns, 
share  and  share  alike.  The  child  or  children  of  any  of  my  children  now 
living,  but  who  die  before  me,  to  receive  the  share  or  portion  its  or  their 
parents  would  have  received  had  he  or  she  been  living  at  the  time  of  my 
death." 


150  WILLS  ACT— SECTIONS  16  (b)-ij 

The  Wills  Act  of  1917  changed  the  rights  of  adopted  children.  Under 
this  act  they  now  have  the  same  rights  of  inheritance  as  children  born 
in  lawful  wedlock. 

Trimble,  J.,  held :  "  'Issue,'  in  Section  15  (a)  and  'child'  or  'children' 
in  Section  16  (&)  are  necessarily  synonymous  in  the  restricted  sense  that 
their  rights  of  inheritance  are  the  same,  and  all  that  is  required  by  the 
latter  subsection  is  that  'child'  or  'children'  'shall  be  construed  to  include 
adopted  children.'  There  can  be  no  doubt  that  the  legislature  has  the 
right  to  say  who  shall  inherit,  and  that  it  properly  exercises  this  right  in 
describing  the  class  referred  to  as  'child  or  children'  by  including  adopted 
children.  If  this  were  not  so,  all  our  statutes  regulating  adoption  which 
have  given  the  right  of  inheritance  would  be  void  in  this  respect.  A  con- 
trary view  would  arise  from  a  strict  interpretation,  by  adhering  to  the 
letter  and  not  to  the  spirit  of  the  law.  *  *  *  If  an  adopted  child  can  be 
included  as  one  of  the  next  of  kin  or  heirs  at  law  who  would  take  in  in- 
testacy, it  cannot  be  said  that  the  legislature  does  not  have  the  authority 
to  include  adopted  children  as  part  of  the  class  of  children  who  take 
under  a  will."  Hill's  Estate,  69  P.  L.  J.  177,  3O  Dist.  477,  s.  c.  69  P.  L. 
J.  348. 

238.     PECUNIARY  LEGACIES  TO  BE  CHARGED  ON 
RESIDUARY  REAL  ESTATE. 

SECTION  17.  All  pecuniary  legacies  contained  in  any  will  shall 
be  charged  upon  and  payable  out  of  any  real  estate  not  specifically 
devised,  where  the  personal  estate  is  insufficient  for  their  payment, 
or  where  the  personal  estate  though  originally  sufficient  has  been 
wasted  or  misapplied  by  the  executor,  unless  a  contrary  intention 
shall  appear  by  the  will. 

NOTE. — This  section  is  new.  The  ordinary  rule  is  that  the  personal  es- 
tate is  not  merely  the  primary  fund  for  the  payment  of  legacies,  but  the 
only  fund  applicable  thereto,  unless  they  are  made  a  charge  upon  the 
real  estate  either  by  express  terms  or  by  clear  implication.  The  Com- 
missioners are  of  opinion  that  the  real  estate  not  specifically  devised  should 
be  assets  for  the  payment  of  pecuniary  legacies  unless  a  contrary  intention 
appears  from  the  will.  This  change  is  in  accordance  with  several  others 
suggested  by  the  Commissioners,  which  tend  to  the  establishment  of  uni- 
formity in  the  descent  and  distribution  of  realty  and  personalty,  both  being 
considered  as  forms  of  property. 

Many  testators  are  unaware  of  the  distinctions  made  by  the  law  in  this 
respect,  which  depend  for  the  most  part  upon  historical  reasons  that  at 
the  present  day  have  lost  their  original  significance;  and  such  testators, 
when  they  bequeath  legacies  of  sums  of  money,  will  naturally  expect  them 
to  be  paid  even  if  their  personal  estates  should  prove  insufficient.  The 
personal  estate  will  continue  as  before  to  be  the  primary  fund  for  the 
payment  of  pecuniary  legacies,  the  section  of  the  act  now  recommended 
charging  their  payment  on  real  estate  not  specifically  devised  unless  a  con- 
trary intention  appears,  thus  merely  changing  the  presumption  of  the 
testator's  intention. 


WILLS  ACT— SECTION  17  151 

In  Maryland,  a  similar  change  was  effected  by  Chapter  438  of  the 
Laws  of  1894. 

The  provision  applicable  to  the  case  of  a  devastavit  of  the  personal 
estate  is  believed  to  express  the  law  as  it  now  stands  where  legacies  are 
charged  on  land  by  the  will:  Cook  v.  Petty,  108  Pa.  138,  and  is  included 
by  way  of  precaution. 

See  Greaves'  Estate,  29  Dist.  577. 

Testator  bequeathed  to  his  favored  niece,  whom  he  had  brought  from 
Germany  to  be  his  housekeeper  and  with  whom  he  had  lived  for  nearly 
thirty  years,  "all  my  personal  property  of  every  description,  *  *  *  in- 
cluding bonds,  mortgages,  certificates  of  stock,  household  furniture,  jew- 
elry, ornaments  and  articles  of  decoration"  absolutely.  He  gave  the  gen- 
eral residue  to  others  and  authorized  his  executrix  to  sell  his  realty  to 
the  best  interest  of  the  estate ;  held,  this  was  a  specific  legacy,  and  the  debts, 
expenses  and  other  legacies  were  payable  out  of  the  proceeds  of  realty. 
Gruner's  Est.,  49  Pa.  C.  C.  642,  29  Dist.  1095. 

Where  testator  devised  all  the  residue  of  his  estate  to  his  wife  for 
life  "subject  to  the  above  devise  and  bequests  to  my  brother  and  my  sis- 
ters," and  further  directed  that  his  wife,  if  she  elected  to  take  under  his 
will,  "shall  execute  such  acquittance  or  acquittances  as  may  be  necessary 
for  vesting  in  my  said  brother  and  sisters  the  devise  and  bequests  herein 
made  to  them ;  it  was  held  that  the  legacies  were  a  charge  upon  the  real 
estate  on  failure  of  the  personalty  as  under  Section  17  of  the  Wills  Act 
of  1917,  no  contrary  intention  could  be  gathered  from  the  express  terms 
of  the  will. 

Where  even  it  does  not  abundantly  appear  from  the  whole  will  that  tes- 
tator did  not  intend  to  exempt  his  land  from  the  payment  of  pecuniary 
legacies  and  the  law  stood  to-day  as  it  was  prior  to  enactment  of  Section 
17  of  the  Wills  Act  of  1917,  the  fact  of  the  blending  of  all  his  estate  for 
the  purpose  of  distribution  would  require  the  construction  to  sustain  the 
contention  that  the  legacies  are  chargeable  upon  the  land  on  failure  of 
the  personalty. 

The  court  said :  "Not  only  can  no  contrary  intention  be  gathered  by  ex- 
press words  or  by  implication  exempting  the  payment  of  the  two  pecuniary 
legacies  of  one  thousand  dollars  each,  set  forth  in  the  petition  as  liens 
upon  the  land,  but  the  terms  of  the  will  expressly  provide  that  the  be- 
quests of  the  residuary  estate,  first  to  the  widow  for  her  life  and  after- 
wards among  his  children  in  fee  simple,  are  subject  to  the  devise  and  be- 
quests in  favor  of  his  brother  and  his  two  sisters:  to  make  this  most  clear, 
he  directs  that  his  widow,  if  she  takes  under  the  will,  shall  execute  such 
acquittance  or  acquittances  as  may  be  necessary  for  vesting  in  these  three 
legatees  the  bequests  to  them.  This  necessarily  carries  with  it  a  strong 
declaration  that  his  estate,  irrespective  of  its  kind,  shall  pay  these  lega- 
cies, and  that  as  an  evidence  thereof  the  widow  must  obtain  from  them 
what  he  calls  an  acquittance — meaning  a  release  or  receipt."  Mulgrew's 
Estate,  69  P.  L.  J.  169. 


152  WILLS  ACT— SECTIONS  18-19 

239.  DEVISES    OF    REAL    ESTATE    SUBJECT    TO 

MORTGAGE, 

SECTION  18.  Unless  the  testator  shall  otherwise  direct  by  his 
will,  the  devisee  of  real  estate,  which  is  subject  to  mortgage,  shall 
take  subject  thereto  and  shall  not  be  entitled  to  exoneration  out 
of  the  other  estate  of  the  testator,  real  or  personal,  and  this 
whether  the  mortgage  was  created  by  the  testator  or  by  a  previous 
owner  or  owners,  and  notwithstanding  any  general  direction  by 
the  testator  that  his  debts  be  paid. 

NOTE. — This  is  a  new  section,  intended  to  remove  the  existing  distinction 
between  mortgages  made  by  the  testator  and  those  created  by  previous 
owners:  Hirst's  Appeal,  92  Pa.  491;  Stuard's  Estate,  17  Phila.  498; 
Burton's  Estate,  15  Pa.  C.  C.  367.  The  distinction  is  a  very  technical  one, 
not  based  on  any  presumed  intention  of  the  testator,  but  simply  on  the 
ground  that  the  personal  estate  is  still  the  primary  fund  for  the  payment 
of  debts,  as  at  one  time  it  was  the  only  asset.  This  historical  justification 
of  the  rule  has  long  been  outgrown;  and  the  change  here  recommended 
is  in  accord  with  the  English  Statutes  of  17  and  18  Viet.,  Chapter  113;  30 
and  31  Viet.,  Chapter  69;  and  40  and  41  Viet.,  Chapter  34,  known  as  the 
Locke  King  Acts.  Those  statutes  contain  further  provisions,  which  the 
Commissioners  have  not  included,  considering  them  either  unnecessary  or 
inapplicable  in  this  state. 

240.  SPENDTHRIFT   TRUSTEES;     INCOME   TO    BE 

LIABLE  FOR  MAINTENANCE  OF  WIFE  AND 
MINOR  CHILDREN. 

SECTION  19.  All  income  whatsoever,  devised  or  bequeathed  by 
any  will  so  as  to  be  free  from  liability  for  the  debts,  contracts  or 
engagements  of  the  beneficiary,  or  so  as  not  to  be  subject  to  exe- 
cution, attachment  sur  judgment,  sequestration  or  other  process, 
shall  notwithstanding  such  testamentary  provisions  be  subject  to 
and  liable  for  the  support  and  maintenance  of  the  wife  and  minor 
children  of  the  beneficiary  and  for  the  value  of  necessaries  fur- 
nished to  them  or  any  of  them,  where  said  beneficiary  has  refused 
or  neglected  to  provide  suitably  for  them,  and  all  of  the  income 
of  said  beneficiary  shall  be  subject  to  all  legal  process  issued  by 
any  court  of  this  commonwealth  having  jurisdiction  in  the  prem- 
ises in  order  to  enforce  such  liability  of  said  beneficiary. 

NOTE. — This  is  a  new  section.  A  similar  provision  as  to  orders  for  sup- 
port appears  in  the  Act  of  April  15,  1913,  P.  L.  72,  5  Purd.  5919,  amend- 
ing Section  2  of  the  Act  of  March  5,  1907,  P.  L.  6. 

The  Commissioners  have  been  impressed  with  the  evil  arising  from 
the  abuse  of  the  doctrine  of  spendthrift  trusts  in  this  commonwealth. 


WILLS  ACT— SECTIONS  19-20  (a),  (&)  153 

The  decisions  of  the  courts  hold  it  legal  for  a  testator  in  disposing  of  his 
own  property  to  bequeath  it  in  trust  so  that  it  shall  not  be  liable  for  the 
debts  of  the  beneficiary;  but  it  is  believed  that  this  protection  should  not 
be  accorded  to  prevent  the  application  of  the  income  to  the  support  and 
maintenance  of  the  family  of  the  beneficiary,  and  enable  him  to  escape 
his  marital  and  parental  duties. 

Since  the  present  act  is  to  apply  only  to  the  estates  of  persons  dying 
after  its  approval,  this  section  does  not  fall  within  the  opinion  in  Com.  v. 
Thomas,  65  Super.  275,  holding  the  Act  of  1913  invalid  as  to  the  estates 
of  testators  dying  before  the  date  of  that  act. 

241.  REVOCATION  OF  WILLS,— OF  LANDS. 

SECTION  20.  (a)  No  will  in  writing  concerning  any  real  estate 
shall  be  repealed  nor  shall  any  devise  or  directions  therein  be 
altered  otherwise  than  by  some  other  will  or  codicil  in  writing,  or 
other  writing  declaring  the  same,  executed  and  proved  in  the  man- 
ner hereinbefore  provided,  or  by  burning,  cancelling,  obliterating 
or  destroying  the  same  by  the  testator  himself,  or  by  someone  in 
his  presence,  and  by  his  express  direction. 

NOTE. — This  is  Section  13  of  the  Act  of  April  8,  1833,  P.  L.  249,  4  Purd. 
5130-5,  which  was  founded  on  Section  6  of  the  Act  of  1705,  i  Sm.  L.  33, 
that  section,  however,  relating  to  personal  estate  only. 

"Under  the  I3th  section  of  the  Act  of  1833,  reenacted  by  the  Act  of 
June  7,  1917,  P.  L.  409,  that  which  was  once  a  perfect  will  must  remain 
such,  unless  repealed,  altered  or  destroyed  in  one  of  the  ways  designated 
by  the  act;  and  a  mere  direction  to  destroy,  however  express,  can  never 
amount  to  a  revocation,  unless  it  should  be  followed  by  burning,  cancel- 
ling, obliterating  or  destroying;  otherwise  the  great  object  of  the  act  of 
assembly,  which  was  to  prevent  parol  revocation,  would  be  entirely  lost: 
Clingan  v.  Mitcheltree,  31  Pa.  25;  Heise  v.  Heise,  31  Pa.  246;  Dixon's 
App.,  55  Pa.  424;  Jones's  Est.,  211  Pa.  364,  368.  Therefore,  before  the 
question  of  revocation  or  cancellation  can  come  up,  it  must  appear  that 
a  perfect  will  was  in  existence  upon  which  such  question  might  be 
founded."  Justice  Kephart,  in  Seiter's  Estate,  265  Pa.  202,  108  All.  614. 

242.  WILLS  OF  PERSONALTY. 

(&)  No  will  in  writing  concerning  any  personal  estate  shall  be 
repealed,  nor  shall  any  bequest  or  direction  therein  be  altered, 
otherwise  than  as  hereinbefore  provided  in  the  case  of  real  estate, 
except  by  a  nuncupative  will,  made  under  the  circumstances  set 
forth  in  Section  41  of  this  act,  and  also  committed  to  writing  in  the 
lifetime  of  the  testator,  and  after  the  writing  thereof,  read  to  or 
by  him,  and  allowed  by  him,  and  proved  to  be  so  done  by  two  or 
more  witnesses. 

1See  217-220  supra. 


154  WILLS  ACT— SECTIONS  20  (6) -21 

NOTE.— This  is  Section  14  of  the  Act  of  1833,  4  Purd.  5135,  which  made 
no  change  in  the  law  as  it  existed  under  the  Act  of  1705,  I  Sm.  L.  33. 

See  217-20  supra. 

Under  the  Act  of  June  7,  1917,  P.  L.  409,  no  question  of  the  revocation 
or  cancellation  of  a  will  can  arise,  unless  it  is  shown  that  a  perfect  will 
was  in  existence  upon  which  such  question  might  be  founded.  Under  the 
Act  of  June  7,  1917,  P.  L.  409,  that  which  was  once  a  perfect  will  must 
remain  such,  unless  repealed,  altered  or  destroyed  in  one  of  the  ways 
designated  by  the  act;  a  mere  direction  to  destroy,  however  express,  can 
never  amount  to  a  revocation,  unless  it  should  be  followed  by  burning, 
cancelling,  obliterating  or  destroying  the  will.  Seiter's  Estate,  265  Pa.  202, 
108  Atl.  614. 

243.  REVOCATION  OF  WILLS  PRO  TANTO  BY  SUB- 
SEQUENT MARRIAGE  OR  BIRTH  OF  CHIL- 
DREN. 

SECTION  21.  When  any  person,  male  or  female,  shall  make  a 
last  will  and  testament  and  afterward  shall  marry  or  shall  have  a 
child  or  children,  either  by  birth  or  by  adoption,1  not  provided  for 
in  such  will,  and  shall  die,  leaving  a  surviving  spouse  and  such 
child  or  children,  or  either  a  surviving  spouse  or  such  child  or 
children,  although  such  child  or  children  be  born  after  the  death 
of  their  father,  every  such  person,  so  far  as  shall  regard  the 
surviving  spouse,  or  child  or  children  born  or  adopted1  after  the 
making  of  the  will,  shall  be  deemed  and  construed  to  die  intestate ; 
and  such  surviving  spouse,  child  or  children,  shall  be  entitled  to 
such  purports,  shares  and  dividends  of  the  estate,  real  and  per- 
sonal, of  the  deceased,  as  if  such  person  had  actually  died  without 
any  will. 

NOTE.— This  is  Section  15  of  the  Act  of  1833,  4  Purd.  5135-7,  modified 
so  as  to  make  the  law  the  same  with  regard  to  women  as  it  is  with  regard 
to  men.  This  involves  the  repeal  of  Section  16  of  the  Act  of  1833,  4  Purd. 
5137,  relating  to  wills  of  single  women.  In  the  fourth  and  fifth  lines, 
"such"  has  been  inserted  before  "child" ;  and  in  the  ninth  line,  "born  after 
the  making  of  the  will"  has  been  substituted  for  "afterborn." 

Section  15  of  the  Act  of  1833  was  founded  on  Section  23  of  the  Act  of 
April  19,  1794,  3  Sm.  L.  143. 

The  history  of  our  legislation  upon  the  subject  is  reviewed  by  Judge 
Penrose  in  Fidelity  Trust  Company's  Appeal,  121  Pa.  I ;  and  in  Owens  v. 
Haines,  199  Pa.  137,  it  was  decided  that  the  will  of  a  woman  was  revoked 
pro  tanto  under  the  Act  of  1833  by  the  subsequent  birth  of  issue.  To  this 
extent,  the  section  now  reported  is  merely  declaratory  of  the  existing  law; 
but  the  Commissioners  in  making  its  language  general  without  distinction 
of  sex  also  recommend  for  repeal  Section  16  of  the  Act  of  1833,  4  Purd. 

1  Added  by  amendatory  Act  of  May  20,  1921  (P.  L.  937). 


WILLS  ACT— SECTION  21  155 

5137,  which  provides  that  a  will  executed  by  a  single  woman  shall  be 
deemed  revoked  by  her  subsequent  marriage.  This  is  in  accordance  with 
the  views  of  the  Commissioners  as  expressed  in  this  new  Wills  Act,  as 
well  as  in  the  new  Intestate  Act,  that  the  property  rights  of  husband  and 
wife  should  be  the  same.  The  old  law  required,  in  case  of  a  testator, 
that  both  marriage  and  birth  of  issue  should  take  place  in  order  to  effect 
a  revocation  of  the  will,  while  a  woman's  will  was  revoked  by  marriage 
alone,  because  of  the  merger  of  her  legal  identity  in  that  of  her  husband. 
In  Pennsylvania,  the  effect  of  the  legislation  was  to  make  either  marriage 
or  the  birth  of  children  unprovided  for  operate  as  a  revocation  pro  tanto 
of  the  will  of  the  testator,  while  marriage  annulled  the  will  of  a  woman, 
though  birth  of  children  unprovided  for  revoked  it  only  pro  tanto.  In  some 
other  states,  and  in  England  by  the  Statute  of  7  William  IV  and  I  Viet., 
Chapter  26,  Section  18,  the  law  has  been  made  uniform  by  giving  this  ef- 
fect of  absolute  revocation  to  the  mere  marriage  of  the  testator  as  well 
as  to  the  marriage  of  a  testatrix,  a  change  that  does  not  appear  advisable, 
for  the  purpose  of  the  doctrine  of  implied  revocation  by  such  a  change 
of  circumstances  is  only  to  protect  the  rights  of  those  persons  who  as 
spouse  or  children  afterward  come  into  being.  This  object  is  accomplished 
by  providing  in  every  case  for  a  revocation  so  far  as  such  persons  are 
concerned,  and  it  is  not  necessary  to  annul  the  entire  will. 

Where  a  widow  makes  her  will,  marries  a  second  time,  and  dies  leav- 
ing in  existence  the  will  made  prior  to  her  second  marriage,  her  surviving 
husband  is  entitled  under  the  Wills  Act  of  June  7,  1917,  P.  L.  403,  and  the 
Intestate  Act  of  June  7,  1917,  P.  L.  429,  as  amended  by  the  Act  of  July 
n,  1917,  P.  L.  755,  to  the  allowance  of  $5,000  provided  by  the  Intestate 
Act.  By  her  remarriage  her  will,  as  to  her  second  husband,  was  annulled, 
and  there  was  an  actual  intestacy  as  to  him.  Shestack's  Est.,  267  Pa.  115, 
no  Atl.  1 66. 

Testator,  by  his  will,  disposed  of  his  entire  estate;  afterwards  he  mar- 
ried, and  then  executed  a  codicil  giving,  inter  alia,  to  his  wife  the  premises 
occupied  by  them  at  the  time  of  his  death,  with  all  furniture  and  silver- 
ware contained  therein,  and  $25,000  in  cash,  "in  addition  to  any  interest 
which  my  said  wife  would  take  under  my  will  or  under  the  intestate 
laws."  After  his  death  the  widow  filed  her  election  to  take  under  the 
codicil  of  the  will  the  amount  therein  given  to  her,  to  wit,  the  mansion 
house,  the  sum  of  $25,000,  and  the  amount  which  she  would  have  re- 
ceived had  he  died  intestate.  At  the  audit  she  claimed  these  portions  of 
the  estate,  in  addition  to  her  exemption  of  $500.  The  auditing  judge  al- 
lowed her  claim,  holding  that  the  election  filed  amounted  to  an  election 
to  take  under  the  will  and  codicil,  and  that  in  effect  testator  had  incor- 
porated the  provisions  of  the  intestate  law  into  his  will  and  considered 
his  will  and  codicil  as  making  one  will  together.  Gest,  J.,  held: 

"Stress  was  laid  by  counsel  in  the  argument  on  the  other  side  upon  the 
use  of  the  word  'or'  as  defining  an  alternative  of  two  bequests,  either  of 
which  she  might  take,  but  not  both,  thus  putting  the  widow  to  an  election, 
not  as  surviving  spouse,  but  as  a  legatee,  to  whom  is  given  a  choice  of  two 


156  WILLS  ACT— SECTION  21 

bequests.  But  the  answer  is  that,  so  far  as  the  widow  was  concerned,  the 
will  was  revoked  by  the  statute,  Wills  Act  of  1917,  Section  21,  reenacting 
the  Act  of  April  8,  1833,  Section  15,  P.  L.  3*5.  and  expressly  declaring 
that  where  the  testator,  after  making  his  will,  shall  afterwards  marry, 
such  person,  so  far  as  shall  regard  the  surviving  spouse,  shall  be  deemed 
and  construed  to  die  intestate.  The  word  'or*  in  this  connection,  may, 
therefore,  fairly  be  construed  to  be  used  in  its  epexegetical  or  explanatory 
sense,  as  equivalent  to  the  words  'that  is  to  say.'"  Greaves's  Est.,  29 
Dist.  577. 

In  a  case  where  a  common  law  marriage  was  not  successfully  proven, 
Solly,  P.  J.,  held  :  "Section  21  of  the  Fiduciaries  Act  (should  be  Wills  Act) 
provides,  When  any  person,  male  or  female,  shall  make  a  last  will  and 
testament  and  afterward  shall  marry  *  *  *  and  shall  die,  leaving  a  sur- 
viving spouse  *  *  *  every  such  person,  so  far  as  shall  regard  the  sur- 
viving spouse,  *  *  *  shall  be  deemed  and  construed  to  die  intestate ; 
and  such  surviving  spouse  *  *  *  shall  be  entitled  to  such  purparts, 
shares  and  dividends  of  the  estate,  real  and  personal,  of  the  deceased, 
as  if  such  person  had  actually  died  without  any  will.'  The  person  shall 
be  deemed  to  die  intestate,  and  the  surviving  husband  shall  be  entitled 
to  the  same  share  in  the  estate  of  his  wife  as  if  she  had  actually  died 
without  any  will.  This  language  is  plain  and  clearly  expresses  the  intent 
of  the  Legislature.  If  a  person  makes  a  will  and  afterwards  marries  and 
dies,  leaving  a  spouse  surviving,  his  or  her  will  is  of  no  effect  as  to  said 
spouse  and  he  or  she  shall  be  construed  to  die  intestate,  and  the  surviving 
spouse  shall  have  such  share  of  the  estate  as  if  there  was  no  will,  as  if 
the  spouse  had  actually  died  without  a  will.  If,  therefore,  there  is  no  will 
in  law,  as  to  the  surviving  spouse,  he  or  she  is  entitled  to  such  share  of 
the  deceased  spouse's  estate  as  if  there  was  an  actual  intestacy,  and  the 
Intestate  Act  of  1917  provides  what  that  share  shall  be.  *  *  *  It  is  con- 
tended by  the  surviving  husband  that  there  is  in  this  case  a  partial  in- 
testacy. We  think  if  he  was  not  the  husband  of  the  testatrix  when  she 
made  her  will,  but  afterwards  married  her,  there  was  an  intestacy,  and 
she  is  to  be  deemed  and  construed  to  die  intestate,  by  the  express  language 
of  Section  21  of  the  Wills  Act  of  1917,  and  he  is  entitled  to  the  share  of 
his  wife's  estate  as  provided  by  Section  2  of  the  Fiduciaries  ("Intestate") 
Act  These  are  the  plain  and  unmistakable  constructions  to  be  placed 
upon  the  two  acts."  Pfanenschmidt's  Est.,  35  Montg.  135. 

REVOCATION  BY  BIRTH  OF  ISSUE. 

Under  this  section  of  the  Wills  Act  the  birth  of  a  child  subsequent  to 
the  making  of  a  will  by  its  parent  operates  as  a  revocation  of  the  will,  so 
far  as  the  will  is  an  execution  of  a  power  of  appointment,  where  the 
child  takes  under  the  donor's  will  in  default  of  appointment,  to  the  extent 
of  such  child's  alternative  rights.  Shoch's  Est.,  29  Dist.  1163,  aff'd  in 
271  Pa.  158. 

REVOCATION  BY  ADOPTION  OF  CHILDREN 

Where  decedent,  subsequent  to  date  of  his  will  adopted  two  children 
by  formal  proceedings,  the  court  in  considering  the  election  of  the  widow 


WILLS  ACT— SECTIONS  21-22  157 

to  take  under  the  will,  and  after  quoting  the  i6th  section  of  the  Intestate 
Act  and  the  i6th  section  of  the  Wills  Act  to  show  that  therein  the  legis- 
lature had  in  mind  the  rights  of  adopted  children,  held: 

"But  since  the  legislature  seems  to  have  been  so  careful  to  make  it  clear 
in  these  sections  that  adopted  children  are  to  be  included  in  these  provi- 
sions for  children  generally,  it  seems  quite  clear  that  such  was  not  the 
intention  in  so  far  as  regards  the  provision  in  Section  21  relating  to  the 
rights  of  children  born  after  the  making  of  a  will.  Certainly,  if  the 
legislature  had  considered  the  language  of  the  Adopting  Act  of  1915  or 
the  Intestate  Act  of  1917,  efficacious  to  make  language  used  in  the  2ist 
section  of  the  Wills  Act  include  adopted  children,  it  would  not  have 
thought  it  necessary  to  incorporate  Sections  8  and  16  in  the  Wills  Act. 

"I  am  therefore  of  opinion  that  the  legislation  of  1917  does  not 
change  the  law  in  Pennsylvania  that  adopted  children  are  not  entitled 
to  any  rights  in  their  adopting  parent's  estate  where  the  adoption  takes 
place  after  the  adopting  parent  has  executed  a  will  and  this  whole  estate 
will  in  accordance  with  this  opinion  be  distributed  under  the  terms  of 
the  will."  Boyd's  Est.,  50  Pa.  C.  C.  163,  10  West.  47,  aff'd  in  270  Pa.  504. 

"It  is  well  known  that  the  latter  act  (Sec.  21  of  Wills  Act  of  1917) 
was  framed  by  a  commission,  singularly  competent  on  the  branch  of  the 
law  with  which  it  had  to  deal,  and  that  its  report  to  the  legislature  was 
adopted  substantially  without  change.  This  commission,  and  the  legisla- 
ture, knew  the  state  of  the  law  as  to  adopted  children  as  it  then  was, 
and  did  not,  so  far  as  the  rights  of  those  adopted  after  the  making  of  a 
will  are  concerned,  place  them  in  the  same  position  as  children  of  the 
adopting  parent.  Nothing  is  said  in  the  act  as  to  adopted  children;  but, 
on  the  contrary,  it  refers  "to  a  child  or  children  born  after  the  making  of 
the  will."  As  the  right  of  inheritance  is  purely  statutory,  and  he  who 
claims  a  share  in  the  inheritance  must  point  to  the  law  which  transmits  it 
to  him,  we  are  constrained  to  hold,  by  the  very  words  of  the  act  and  in 
agreement  with  the  reasoning  in  Goldstein  v.  Hammell  (236  Pa.  305), 
that  the  appellants  can  assert  no  interest  in  the  estate  of  their  adopted 
father.  If  it  is  deemed  wise  to  provide  that  adopted  children  shall  have 
the  rights  here  claimed  for  them,  the  legislature  can  extend  the  law  to  cover 
them;  we  cannot."  Per  Mr.  Justice  Schaffer  in  affirming  Boyd's  Est., 
supra,  in  270  Pa.  504. 

See  now  however,  Act  of  May  20,  1921,  P.  L.  937. 

244.    FORFEITURE    OF    RIGHTS    BY    DEVISEE    OR 
LEGATEE  WHO  MURDERS  THE  TESTATOR. 

SECTION  22.  No  person  who  shall  be  finally  adjudged  guilty, 
either  as  principal  or  accessory,  of  murder  of  the  first  or  second 
degree,  shall  be  entitled  to  take  any  part  of  the  real  or  personal 
estate  of  the  person  killed,  as  devisee  or  legatee  or  otherwise  under 
the  will  of  such  person. 

NOTE. — This  is  a  new  section,  corresponding  to  Section  23  of  the  new 
Intestate  Act.  (See  347  infra.)  See  the  note  to  that  section. 


158  WILLS  ACT— SECTION  23  (a) 

245.  ELECTION  TO  TAKE  UNDER  OR  AGAINST 
WILLS,— RIGHT  OF  SURVIVING  SPOUSE  TO 
TAKE  AGAINST  WILL  OF  DECEASED 
SPOUSE. 

SECTION  23.  (a)  When  any  person  shall  die  testate  leaving  a  sur- 
viving spouse,  who  shall  elect  to  take  against  the  will,  such  surviv- 
ing spouse  shall  be  entitled  to  such  interests  in  the  real  and  personal 
estate  of  the  deceased  spouse  as  he  or  she  would  have  been  entitled 
to  had  the  testator  died  intestate :  Provided,  That  nothing  herein 
contained  shall  affect  the  right  or  power  of  a  married  woman,  by 
virtue  of  any  authority  or  appointment  contained  in  any  deed  or 
will,  to  bequeath  or  devise  any  property  held  in  trust  for  her  sole 
and  separate  use. 

NOTE. — This  is  a  new  section,  framed  to  make  the  rights  of  husband  and 
wife  the  same  in  electing  to  take  against  a  will.  The  proviso  is  copied 
from  Section  i  of  the  Act  of  May  4,  1855,  P.  L.  430,  3  Purd.  2460. 

The  adoption  of  this  section  involves  the  repeal  of  Section  n  of  the  Act 
of  1833,  i  Purd.  1275-6;  Section  u  of  the  Act  of  April  n,  1848,  P.  L.  537, 
I  Purd.  1276-7;  Section  i  of  the  Act  of  May  4,  1855,  supra;  and  Section 
i  of  the  Act  of  April  20,  1869,  P.  L.  77,  i  Purd.  1278. 

See  forms  69-7.     See  Flower's  Est.,  30  Dist.  967. 

As  against  the  more  certain  provisions  of  Section  2  (a)  of  the  Intestate 
Act,  it  was  held  that  the  election  by  a  widow  to  take  against  a  will  did 
not  create  under  this  section  of  the  Wills  Act,  such  an  intestacy  as  would 
entitle  her  to  the  allowance  of  $5,000  provided  in  the  said  section  of  the 
Intestate  Act.  Collom's  Estate,  47  Pa.  C.  C.  434,  28  Dist.  503. 

"The  situation  confronting  us  is  the  provision  of  the  Wills  Act  that  the 
spouse  taking  against  the  will  shall  take  as  he  or  she  would  have  been  en- 
titled to  had  the  testator  died  intestate  and  the  provision  of  Section  2  (a) 
of  the  Intestate  Act  as  amended.  The  intention  of  the  legislature  to  dis- 
tinguish between  a  surviving  spouse  of  a  testate  and  an  intestate  is  per- 
fectly apparent  from  the  text  of  the  proviso  in  the  Intestate  Act.  With 
no  other  law  in  the  statutes  of  the  commonwealth  providing  what  should 
be  taken  by  the  surviving  spouse  of  a  deceased  testate  who  might  elect  to 
take  against  the  will,  this  would  have  barred  him  or  her  from  partici- 
pating in  the  distribution  of  the  estate.  With  the  provision  which  is  con- 
tained in  the  Wills  Act,  it  might  have  been  construed  that  the  surviving 
spouse  takes  in  the  same  manner  and  amount  as  the  surviving  spouse  of  an 
intestate.  That,  however,  is  not  before  the  court  for  determination,  but 
the  intention  of  the  legislature  to  place  them  on  a  different  basis  as  to 
inheritance  is  emphasized  by  the  amendment  of  July  u,  1917,  P.  L.  755. 
Clearly,  it  was  the  intention  of  the  legislature  that  the  surviving  spouse 
of  one  dying  testate,  who  elected  to  take  against  the  will,  should  not  enjoy 
the  full  benefits  enjoyed  by  the  surviving  spouse  of  an  intestate  and  that 
she  should  not  enjoy  the  benefits  of  the  five  thousand  dollars  in  value. 
Therefore,  we  hold  that  the  surviving  spouse  of  one  dying  testate,  electing 


WILLS  ACT— SECTION  23  (a)  159 

to  take  against  the  will  of  the  deceased  spouse,  is  not  entitled  to  the 
$5,000  in  value,  but  takes  in  accordance  with  the  provisions  of  Section 
2  (a)  of  the  Act  of  Assembly  of  June  7,  1917,  P.  L.  429,  as  amended  by 
the  Act  of  July  n,  1917,  P.  L.  755-"  Shull,  P.  J.,  in  Langerwisch's  Estate, 
47  Pa.  C.  C.  121,  28  Dist.  470,  8  Lehigh  147,  affirmed  in  267  Pa.  319,  no 
Atl.  165. 

The  fact  that  the  testator  directs  a  sale  of  his  real  estate,  thus  working 
a  conversion,  and  impressed  the  proceeds  with  a  trust  in  favor  of  his 
widow  and  others,  does  not  preclude  the  widow  who  elects  to  take  against 
the  will  from  taking  her  interest  in  the  real  estate  as  realty,  and  de- 
manding that  it  be  set  apart  for  her  in  severalty. 

"When  the  widow  perfected  her  election  to  take  against  the  will,  she, 
thereupon,  under  the  laws  of  the  commonwealth,  became  invested  with  a 
fixed  interest  in  the  decedent's  real  estate  specifically  as  land  and  by  her 
said  action  did  not  thereby  become  entitled  to  receive  merely  a  portion  of 
the  proceeds  to  accrue  from  a  sale  thereof.  Her  rights  upon  such  election 
are  defined  by  the  Wills  Act  of  1917,  P.  L.  403,  which,  being  in  force  and 
effect  at  the  time  of  her  husband's  death,  governs  and  controls  his  estate 
and  the  administration  and  devolution  thereof.  Clause  (a)  of  Section  23 
of  that  statute  provides,  that  in  the  event  of  a  surviving  spouse's  electing 
to  take  against  a  decedent's  will,  'such  surviving  spouse  shall  be  entitled 
to  such  interests  in  the  real  and  personal  estate  of  the  deceased  spouse 
as  he  or  she  would  have  been  entitled  to,  had  the  testator  died  intestate.' 
Note  particularly  that  the  statute,  in  plain  language,  gives  the  surviving 
spouse  an  interest  in  specific  real  and  personal  estate  as  such  and  not 
merely  in  the  proceeds  thereof  or  any  substitution  therefor.  Now,  had 
the  decedent  died  intestate,  there  would  of  course  have  been  no  will,  and, 
as  to  the  decedent's  real  estate,  the  widow,  upon  his  death,  would  have 
inherited  a  specific  interest  in  the  land  itself.  Under  such  circumstances 
there  could,  by  no  possibility,  have  been  any  proceeds  of  or  substitution 
for,  the  real  estate  for  her  consideration.  The  said  statute  in  the  clearest 
language  imaginable  gives  to,  and  vests  in,  her  a  share  of  the  land  itself. 
Such  has  always  been  the  quality  or  kind  of  interest,  to  wit,  an  interest 
in  land  itself,  which  the  laws  of  the  Commonwealth  of  Pennsylvania  have 
vested  in  widows,  upon  their  electing  to  take  against  their  husband's  wills. 
Under  Section  n  of  the  Wills  Act  of  April  8,  1833,  P.  L.  250,  a  widow 
electing  to  take  against  her  deceased  husband's  will  became  entitled  to 
common  law  dower  in  his  real  estate,  to  wit,  a  freehold  interest  therein : 
Watterson's  Appeal,  95  Pa.  312  (1880).  The  Act  of  April  20,  1869,  P.  L. 
77,  changed  the  share  of  a  widow  electing  to  take  against  her  husband's 
will  from  common  law  dower  to  so-called  statutory  dower.  Thus,  it  is 
seen  that  under  both  of  these  older  statutes  the  interest  which  vested  in 
a  widow  upon  her  electing  to  take  against  her  husband's  will,  was  a  share 
of  the  land  itself  and  not  of  the  proceeds  of  the  sale  thereof  or  substi- 
tution therefor.  The  precise  language  of  the  said  provision  of  the  Act 
of  April  20,  1869,  P.  L.  77  (changed  only  so  as  to  include  surviving  hus- 
bands), has  been  reenacted  and  now  forms  a  part  of  said  Section  23  of 
the  Wills  Act  of  1917,  P.  L.  403 ;  hence  the  decisions  under  the  former 
act  apply  with  equal  force  and  effect  to  the  same  provisions  incorporated 
in  the  later  statute."  *  *  *  "Upon  deliberating  on  the  unequivocal 


160  WILLS  ACT— SECTION  23  (o) 

language  of  the  said  pertinent  statutory  provision  which  applies  to  and 
controls  the  present  estate,  its  administration  and  devolution,  to  wit, 
Section  23  of  the  Wills  Act  of  1917.  P.  L.  403,  and,  guided  by  the  light 
afforded  by  the  authorities  recited,  we  reach  the  legal  conclusion  that 
upon  the  petitioner's  electing  to  take  against  her  deceased  husband's  will, 
she  then  became  entitled  to  and  was  invested  with,  inter  alia,  a  one-half 
part,  share  or  interest  in  his  real  estate  which  forms  the  subject  matter 
of  this  proceeding;  and  that  her  ownership  of  such  part,  share  or  interest 
incidentally  carries  with  it,  the  absolute  right  to  have  the  same  cut  off  in 
severalty  from  the  remaining  undivided  interests  and  shares,  and  that 
accordingly  she  has  due  standing  in  law  to  maintain  this  proceeding  to 
effect  such  partition ;  possessing  such  absolute  right  notwithstanding  the 
fact  that  the  remaining  interests  or  shares  are  made  subject  to  a  trust  by 
the  provisions  of  the  will:  Reid  v.  Glendenning,  193  Pa.  406  (1899)."  *  *  * 
"As  the  decedent,  William  S.  Dodd,  whose  estate  is  before  us,  died  on 
September  19,  1920,  to  wit,  long  after  December  31,  1917,  the  date  upon 
which  the  Wills  Act  of  1917,  P.  L.  403,  and  the  Intestate  Act  of  1917, 
P.  L.  429,  both  became  operative,  this  estate,  its  administration  and  devolu- 
tion, are  therefore  manifestly  subject  to  the  control  of  these  two  statutes. 
We  are,  therefore,  clearly  of  the  opinion  that  the  petitioner,  as  widow  of 
the  decedent,  upon  her  electing  to  take  against  her  husband's  will  became, 
under  Section  23  of  the  said  Wills  Act  of  1917,  P.  L.  403,  and  under 
Section  2  (a)  of  the  said  Intestate  Act  of  1917,  P.  L.  429,  entitled  to  and 
invested  with,  an  undivided  one-half  part,  share  or  interest  in  fee  simple, 
in  said  decedent's  real  estate ;  and  that  the  cited  portions  of  the  said 
Orphans'  Court  Partition  Act  of  1917,  P.  L.  337  (15,  18  and  29),  do  not 
and  are  not  designed  to  diminish  such  fee  simple  share,  part  or  interest 
so  prescribed  for  the  widow  in  and  by  the  said  Wills  Act  and  Intestate 
Act."  Dodd's  Estate,  i  Wash.  236. 

That  section  of  the  Wills  Act  of  1917  which  provides  that  a  failure  to 
make  an  election  within  two  years  "shall  be  deemed  an  election  to  take 
under  the  will"  is  of  no  retroactive  effect,  and  does  not  apply  where  tes- 
tator died  prior  to  the  passage  of  said  act.  This  is  a  new  provision  intro- 
duced by  the  Act  of  1917,  and  was  no  part  of  the  law  until  that  time. 

"Section  23  of  the  statute  prescribes  the  form,  requirements  and  pro- 
cedure in  the  matter  of  spouses'  elections  to  take  under  or  against  dece- 
dents' wills.  The  employment  of  the  word  'shall'  in  the  opening  sentence 
of  this  section  indicates  futurity,  to  wit,  that  the  provisions  of  such  sec- 
tion are  to  apply  only  to  the  estates  of  those  who  die  after  the  said  act 
shall  become  operative,  or,  at  least,  after  its  passage.  Annie  E.  Young 
died  on  March  26,  1917,  months  before  the  time  set  for  the  Wills  Act  to 
become  operative,  to  wit,  December  31,  1917,  and  months,  moreover,  before 
the  bill  was  enacted  by  the  legislature  or  approved  by  the  governor.  Again 
Section  26  of  the  act  in  express  and  unconditional  language  makes  the 
statute  apply  only  to  the  wills  of  persons  dying  on  or  after  December  31, 
1917;  providing  that  as  to  the  wills  of  all  persons  dying  before  that  day, 
the  existing  laws  should  remain  in  full  force  and  effect.  Under  the  laws 
of  the  Commonwealth  which  were  in  force  at  the  date  of  the  death  of  the 
testatrix,  there  was  no  time  fixed  or  limited  during  which  a  surviving 
spouse  was  obliged  to  make  his  or  her  election,  under  penalty  of  being 


WILLS  ACT— SECTION  23  (o),  (6)  161 

deemed  and  held  to  have  elected  to  take  under  the  will,  because  of  neglect 
or  failure  to  make  such  election  during  such  limited  period.  See  Beck's 
Estate,  265  Pa.  51  (1919).  The  said  two-year  period  is  applicable  only  to 
estates  of  testates  dying  on  or  after  December  31,  1917."  Per  Hughes, 
P.  J.,  in  Young's  Estate,  I  Wash.  250. 

Where  a  testator  executed  a  will  in  which  he  made  no  provision  for 
his  wife,  the  latter  can  take  against  the  will,  notwithstanding  the  fact 
that  she  was  not  living  with  her  husband  at  the  time  of  his  death,  unless 
her  wilful  and  malicious  desertion  has  been  clearly  established.  Schreck- 
engost's  Est.,  77  Super.  235. 

246.    HOW   ELECTION   TO   BE   MANIFESTED   AND 
WITHIN  WHAT  TIME. 

(&)  A  surviving  spouse  electing  to  take  under  or  against  the 
will  of  the  decedent  shall,  in  all  cases,  manifest  the  election  by  a 
writing  signed  by  him  or  her,  duly  acknowledged  before  an  officer 
authorized  by  law  to  take  the  acknowledgment  of  deeds,  and  de- 
livered to  the  executor  or  administrator  of  the  estate  of  such  de- 
cedent, within  twa  year^  after  the  issuance  of  letters  testamentary  ft 
or  of  administration.    Ijeglect  or  refusal  or  failure  to  deliver  such         ^ 
writing  within  said  period  shall  be  deemed  an  election  tojtake  under  ?e<^.  /,» 
the  will.       0  .  C  »     a*^.   j^^-^^i   4-\^«-  ~ 

NOTE. — This  is  founded  on  Section  i  of  the  Act  of  April  21,  191 1,  P.  L. 
79,  7  Purd.  7766.  The  two-year  limitation  is  new,  the  provision  that  failure 
to  elect  shall  be  deemed  an  election  to  take  under  the  will  being  similar 
to  the  provision  in  Section  35  of  the  Act  of  1832,  which  is  embodied  in 
clause  (d)  of  this  section. 

It  is  the  duty  of  an  executor  asking  the  widow  to  make  her  election 
whether  to  take  under  her  husband's  will  or  not,  to  inform  her  of  the 
condition  of  the  estate,  fully  and  correctly. 

Where  a  widow,  the  day  after  her  husband's  funeral,  with  the  executor 
of  her  husband's  will,  visited  the  executor's  attorney,  who  told  her,  in  a 
language  in  which  she  was  unaccustomed  to  converse,  and  under  circum- 
stances and  surroundings  unfamiliar  to  her,  that  under  her  husband's  will 
she  will  receive  nothing  of  his  estate  but  the  amount  of  the  widow's  ex- 
emption and  explained  the  estimated  amount  she  would  receive  if  she 
should  take  against  the  will,  and  she  then  expressed  an  intention  not  "to 
do  anything  but  what  her  husband  had  done,"  executed  and  acknowledged 
a  formal  acceptance  of  the  will,  and  received  from  the  executor  a  payment 
of  twenty  dollars;  and  subsequently  in  proceedings  to  rescind  her  ac- 
ceptance, the  court  found  that  when  she  executed  the  election  to  take 
under  the  will,  she  did  not  have  such  a  clear  conception  of  the  estate 
and  her  rights  therein  as  would  enable  her  to  make  a  proper  decision, 
although  no  intentional  deception  was  practiced  upon  her,  her  election 
ii 


1 62  WILLS  ACT— SECTION  23  (&) 

to  take  under  the  will  was  cancelled,  and  she  was  permitted  to  elect  to 
take  against  the  will.  In  so  holding  the  court,  per  Ross,  J.,  said,  inter  alia : 

"The  established  right  of  a  widow  to  take  against  the  provisions  of 
the  will  of  her  deceased  husband,  is  recognized  by  the  Act  of  June  7, 
1917,  P.  L.  403,  and  the  23d  section  of  that  act  prescribes  the  method  by 
which  she  shall  elect  to  take,  either  under  or  against  the  will.  *  *.  *  In 
view  of  the  fact  that  the  Wills  Act  of  1917  provides  a  definite  time  (two 
years)  for  the  widow  to  elect  and  six  months  before  she  can  be  cited  to 
elect,  and  a  further  month  for  reflection  after  the  citation  issues,  it  is 
evident  that  the  legislature  intended  to  revive  and  extend  the  time  limi- 
tation, which  was  formerly  given  the  widow  by  the  Act  of  1832,  and  thus 
bring  its  interpretation  within  the  law  illustrated  by  the  existing  decisions 
of  the  Supreme  Court  (some  of  which  we  have  cited)  and  cure  the  Act 
of  April  21,  1911,  P.  L.  79,  by  making  it  plain  that  a  technical  compliance 
with  the  provisions  of  the  'Wills  Act'  would  not  preclude  widows  from 
rescinding  their  election  when  made  under  circumstances  such  as  the  evi- 
dence reveals  in  the  case  at  bar."  Lehman's  Estate,  33  York  113,  8  Le- 
high  315. 

That  section  of  the  Wills  Act  of  1917  which  provides  that  a  failure  to 
make  an  election  within  two  years  "shall  be  deemed  an  election  to  take 
under  the  will"  is  of  no  retroactive  effect,  and  does  not  apply  where  tes- 
tator died  prior  to  the  passage  of  said  act.  This  is  a  new  provision  in- 
troduced by  the  Act  of  1917  and  was  no  part  of  the  law  until  that  time. 

"The  remaindermen  maintain  that  on  account  of  the  failure  on  the  part 
of  the  petitioner  for  a  period  of  two  years  following  the  decedent's  death, 
to  execute,  acknowledge  and  deliver  a  formal  election  to  take  against  the 
will,  in  conformity  with  the  requirements  of  the  Act  of  April  21,  1911, 
P.  L.  79,  he  must  be  deemed  in  law,  to  have  elected  to  take  under  the  will. 
The  provisions  of  the  last  paragraph  of  clause  (b)  of  Section  23  of  the 
Wills  Act  of  1917,  P.  L.  403  (which  they  contend  in  spirit  and  intent  gov- 
erns the  administration  and  devolution  of  the  estate  before  us,  although 
this  testatrix  died  months  before  the  said  Wills  Act  of  1917,  P.  L.  403, 
became  operative),  providing  that  'neglect  or  refusal  to  deliver  such  writ- 
ing within  said  period  shall  be  deemed  an  election  to  take  under  the  will.' 
The  provisions  of  this  paragraph  were  no  part  of  the  laws  of  the  com- 
monwealth until  introduced  as  a  part  of  the  said  Wills  Act  of  1917,  P. 
L.  403;  hence  the  said  provisions  can  have  no  applicability  to  the  estate 
of  this  decedent,  unless  the  same  are  by  the  statute  made  or  intended  to  be, 
retroactive.  Nowhere  in  this  statute  do  we  find  anything  to  indicate  that 
such  provision  thereof  is  intended  to  be  retroactive ;  but  on  the  other 
hand  the  act,  in  plain  language,  shows  that  it  is  not  to  be  deemed  retro- 
active. Section  23  of  the  statute  prescribes  the  form,  requirements  and 
procedure  in  the  matter  of  spouses'  elections  to  take  under  or  against  de- 
cedents' wills.  The  employment  of  the  word  'shall'  in  the  opening  sen- 
tence of  this  section  indicates  futurity,  to  wit,  that  the  provisions  of  such 
section  are  to  apply  only  to  the  estates  of  those  who  die  after  the  said 
act  shall  become  operative,  or,  at  least,  after  its  passage.  Annie  E.  Young 
died  on  March  26,  1917,  months  before  the  time  set  for  the  Wills  Act  to 
become  operative,  to  wit,  December  31,  1917,  and  months,  moreover,  be- 
fore the  bill  was  enacted  by  the  legislature  or  approved  by  the  governor. 


WILLS  ACT— SECTION  23  (&)  163 

Again  Section  26  of  the  act  in  express  and  unconditional  language  makes 
the  statute  apply  only  to  the  wills  of  persons  dying  on  or  after  December 
31,  1917,  providing  that  as  to  the  wills  of  all  persons  dying  before  that 
day,  the  existing  laws  should  remain  in  full  force  and  effect.  Under  the 
laws  of  the  commonwealth  which  were  in  force  at  the  date  of  the  death 
of  the  testatrix,  there  was  no  time  fixed  or  limited  during  which  a  sur- 
viving spouse  was  obliged  to  make  his  or  her  election,  under  penalty  of 
being  deemed  and  held  to  have  elected  to  take  under  the  will,  because  of 
neglect  or  failure  to  make  such  election  during  such  limited  period.  See 
Beck's  Estate,  265  Pa.  51  (1919).  The  said  two-year  period  is  applicable 
only  to  estates  of  testates  dying  on  or  after  December  31,  1917."  Per 
Hughes,  P.  J.,  in  Young's  Est.,  I  Wash.  250. 

A  surviving  spouse  must  file  an  election  to  take  against  the  will  of  the 
deceased  spouse  within  two  years  of  the  issuance  of  letters  testamentary 
or  of  administration,  as  required  by  Section  23  (6)  of  the  Wills  Act  of 
June  7,  1917,  P.  L.  403,  4™. 

A  widow,  living  apart  from  her  husband,  although  in  Philadelphia, 
where  he  resided,  was  notified  of  his  death  by  his  executor  immediately 
after  it  occurred;  the  grant  of  letters  was  duly  advertised;  the  petition 
for  probate  of  the  will  correctly  stated  the  testator's  real  and  personal 
property;  the  inventory  was  duly  filed;  but  she  filed  no  election  to  take 
against  his  will  until  more  than  two  years  after  the  issuance  of  letters : 
Held,  that  her  election  was  too  late. 

Under  these  facts  the  executor  was  under  no  duty  to  seek  the  widow 
out  and  advise  or  assist  her  to  take  against  the  will. 

The  widow  was  not  relieved  from  the  necessity  of  filing  an  election  in 
accordance  with  the  Act  of  1917,  by  reason  of  the  fact  that  the  will  did 
not  leave  her  anything. 

"The  object  of  the  Legislature  was  evidently  to  fix  a  definite  time  after 
which  the  right  to  elect  against  the  will  should  cease  (unless,  perhaps, 
fraud  be  shown),  and,  as  the  auditing  judge  well  says,  this  clause  of  the 
statute  is  one  for  the  protection  of  those  dealing  with  the  estates  of 
decedents,  and  is  to  be  regarded  as  a  statute  of  repose.  It  will  be 
remembered  that  formerly  an  election  could  be  made  at  any  time  and 
need  not  even  be  in  writing.  The  Act  of  May  29,  1832,  Sec.  35,  P.  L. 
190,  i  Purd.  1277,  provided  a  means  by  citation  to  compel  the  widow  to 
make  her  election  as  a  matter  of  record  after  the  expiration  of  a  year 
from  the  testator's  death.  The  Act  of  April  21,  1911,  P.  L.  79,  7  Purd. 
7766,  then  enacted  that  surviving  husbands  or  wives,  electing  to  take  under 
or  against  the  wills  of  decedents,  should  in  all  cases  manifest  their 
elections  in  writing,  signed  and  acknowledged,  and  even  provided  that 
no  payment  should  be  made  to  any  husband  or  wife  unless  the  election 
was  executed,  acknowledged  and  delivered ;  the  manifest  intention  of 
this  act  being,  as  was  said  in  Beck's  Estate,  265  Pa.  51,  to  promote 
certainty  in  the  settlement  of  estates. 

"The  present  section,  twenty-three  of  the  Wills  Act,  in  clause  (a) 
assimilated  the  rights  of  the  surviving  husband  and  wife;  clause  (&) 
founded  on  Section  i  of  the  Act  of  1911,  provided  that  the  election  should 
be  made  in  writing,  signed  and  acknowledged,  and  added  the  two-year 


164  WILLS  ACT— SECTION  23  (&),  (O,  (rf) 

limitation  involved  in  this  case.  Clause  (c)  practically  reenacted  the 
second  section  of  the  Act  of  1911,  and  clause  (d)  extended  the  citation 
granted  by  the  Act  of  1832  to  the  case  of  a,  husband,  theretofore  not 
included,  and  shortened  the  period  from  twelve  to  six  months. 

"That  the  limitation  prescribed  by  the  statute  must  be  observed  at  least 
in  the  absence  of  fraud,  would  appear  to  be  perfectly  clear  from,  the 
language  of  the  act,  and  the  industry  of  counsel  has  discovered  decisions 
in  other  states  where  similar  acts  have  been  likewise  construed.  Among 
them  are  Scheible  v.  Rinck,  195  111.  636 ;  Shelton  v.  Sears,  187  Mass.  455 ; 
Akin  v.  Kellogg,  119  N.  Y.  441;  Smith  v.  Smith,  20  Vt  270."  Gest,  J., 
in  Flower's  Estate,  30  Dist.  967. 

247.  NO    PAYMENTS   TO    BE    REQUIRED   BEFORE 

ELECTION. 

(c)  No  payment  from  the  estate  of  such  decedent,  except  the 
exemption  allowed  by  law  to  the  widow,  shall  be  required  to  be 
made  to  any  surviving  spouse  unless  his  or  her  election  shall  have 
been  first  duly  executed,  acknowledged  and  delivered,  as  provided 
in  clause  (6)  of  this  section. 

NOTE. — This  is  Section  2  of  the  Act  of  April  21,  1911,  P.  L.  79,  7  Purd. 
7766,  changed  by  inserting  the  provision  as  to  widow's  exemption,  and  the 
words  "required  to  be." 

See  Flower's  Est,  30  Dist.  967. 

248.  SURVIVING  SPOUSE  MAY  BE  CITED  TO  MAKE 

ELECTION. 

(d)  The  orphans'  court,  on  the  application  of  any  person  in- 
terested in  the  estate  of  a  decedent,  may  issue  a  citation,  at  any 
time  after  six  months  from  the  death  of  the  testator,  to  the  sur- 
viving spouse  of  the  testator,  to  appear  at  a  certain  time  not  less 
than  one  month  thereafter,  in  the  said  court,  to  make  his  or  her 
election  to  take  under  or  against  the  will,  which  election  shall  be 
filed  of  record,  and  shall  be  conclusive.     If  the  surviving  spouse 
shall  neglect  or  refuse  to  appear  on  such  citation,  then  upon  due 
proof  being  made  to  the  court  of  the  service  thereof,  the  said  neg- 
lect or  refusal  shall  be  deemed  an  election  to  take  under  the  will, 
and  the  decree  of  the  court  to  that  effect  shall  be  conclusive. 

NOTE. — This  is  founded  on  Section  35  of  the  Act  of  March  29,  1832, 
P.  L.  200,  I  Purd.  1277-8.  The  changes  are  the  extension  of  the  section 
to  husband  as  well  as  wife,  and  the  shortening  of  the  period  from  twelve 
to  six  months,  in  harmony  with  the  reduction  of  the  period  for  the  filing 
of  the  account.  Some  changes  in  phraseology  have  been  made  with  a 
view  to  clearness. 


WILLS  ACT— SECTION  23  (</),  (<?)  165 

Where  the  Court  of  Common  Pleas  has  refused  the  guardian  of  a  weak- 
minded  person  permission  to  elect  to  take  against  the  will  of  the  ward's 
deceased  husband,  an  order  will  not  be  made  upon  the  petition  of  the 
executor  directing  the  guardian  to  take  under  the  will,  although  without 
such  order  the  executor  may  not  be  able  to  make  a  good  title  to  real 
estate  which  the  will  directs  to  be  sold.  Haack's  Est.,  30  Dist.  669. 

See  Flower's  Est.,  30  Dist.  967. 

249.  ELECTION  OF  SURVIVING  SPOUSE,  OR  DE- 
CREE OF  COURT  WHERE  THERE  IS  A  FAIL- 
URE TO  ELECT,  TO  BE  RECORDED  AND 
FILED. 

(e)  The  election  by  a  surviving  spouse,  or  a  certified  copy  of 
the  final  decree  of  any  orphans'  court,  in  cases  where  there  shall 
have  been  an  election  in  accordance  with  clause  (rf)  hereof,  or  a 
neglect  or  refusal  to  elect  within  the  time  prescribed  by  the  order 
of  the  said  court,  shall,  at  the  cost  of  the  estate,  be  recorded  by 
the  personal  representative  of  the  decedent,  in  the  office  for  the 
recording  of  deeds  of  the  county  where  the  decedent's  will  is  pro- 
bated, in  the  deed  book,  and  shall  be  indexed  by  the  recorder  in  the 
grantors'  index  under  the  name  of  the  decedent,  and  in  the  gran- 
tees' index  under  the  name  of  the  surviving  spouse,  and  shall  be 
registered  in  the  survey  bureau,  or  with  the  proper  authorities  em- 
powered to  keep  a  register  of  real  estate,  if  any  there  be,  in  said 
county.  The  charges  for  recording  and  registering  shall  be  the 
same  as  are  provided  by  law  for  similar  services.  The  election, 
or  decree  of  the  court,  or  a  certified  copy  of  either,  may  also  be 
recorded  in  any  office  for  the  recording  of  deeds  within  this  com- 
monwealth, with  the  same  effect  as  if  a  duly  signed  and  acknowl- 
edged declaration  to  the  effect  stated  therein  had  been  made  by  the 
person  authorized  to  elect,  and  at  his  or  her  request  recorded  in 
said  office  according  to  law.  After  the  said  election  shall  have 
been  recorded  in  the  office  for  the  recording  of  deeds  as  aforesaid, 
the  said  election,  at  the  cost  of  the  estate,  shall  be  filed  in  the  office 
of  the  clerk  of  the  orphans'  court  and  a  record  made  of  such  filing 
by  the  said  clerk. 

NOTE. — This  is  Section  3  of  the  Act  of  April  21,  1911,  P.  L.  79,  7  Purd. 
7766,  with  some  changes  in  phraseology,  the  substitution  of  the  clerk  of 
the  orphans'  court  for  the  register  of  wills,  and  the  insertion  of  the  pro- 
visions as  to  registration  and  as  to  charges  for  recording  and  registering. 


!66  WILLS  ACT— SECTIONS  24-25-26 

250.  ACT  NOT  TO  APPLY  TO  WILLS  OF  PERSONAL 

ESTATE,  EXECUTED  BY  TESTATOR  DOMI- 
CILED WITHOUT  THE  COMMONWEALTH. 

SECTION  24.  Nothing  in  this  act  contained  shall  be  construed  to 
apply  to  the  disposition  of  personal  estate  by  a  testator  whose 
domicile,  at  the  time  of  his  death,  was  out  of  this  commonwealth. 

NOTE. — This  is  Section  17  of  the  Act  of  1833,  4  Purd.  5128,  modified  so 
as  to  conform  to  the  language  of  Section  25  of  the  new  Intestate  Act.  (See 
349  infra.) 

251.  SHORT  TITLE. 

SECTION  25.  This  act  shall  be  known  and  may  be  cited  as  the 
Wills  Act  of  1917. 

252.  WHEN  ACT  SHALL  GO  INTO  OPERATION. 

SECTION  26.  This  act  shall  take  effect  on  the  thirty-first  day  of 
December,  1917,  and  shall  apply  to  the  wills  of  all  persons  dying 
on  or  after  said  day.  As  to  the  wills  of  all  persons  dying  before 
that  day,  the  existing  laws  shall  remain  in  full  force  and  effect. 

NOTE. — This  section  corresponds  to  Section  27  of  the  new  Intestate  Act. 
(See  351  infra.)  It  supplies  Section  18  of  the  Act  of  1833,  4  Purd.  5129. 

That  section  of  the  Wills  Act  of  1917,  which  provides  that  a  failure  to 
make  an  election  within  two  years  "shall  be  deemed  an  election  to  take 
under  the  will"  is  of  no  retroactive  effect,  and  does  not  apply  where  tes- 
tator died  prior  to  the  passage  of  said  act.  This  is  a  new  provision  intro- 
duced by  the  Act  of  1917,  and  was  no  part  of  the  law  until  that  time. 

"Annie  E.  Young  died  on  March  26,  1917,  months  before  the  time  set 
for  the  Wills  Act  to  become  operative,  to  wit,  December  31,  1917,  and 
months,  moreover,  before  the  bill  was  enacted  by  the  legislature  or  ap- 
proved by  the  governor.  Again  Section  26  of  the  act  in  express  and  un- 
conditional language  makes  the  statute  apply  only  to  the  wills  of  persons 
dying  on  or  after  December  31,  1917;  providing  that  as  to  the  wills  of 
all  persons  dying  before  that  day.  the  existing  laws  should  remain  in  full 
force  and  effect.  Under  the  laws  of  the  commonwealth  which  were  in 
force  at  the  date  of  the  death  of  the  testatrix,  there  was  no  time  fixed 
or  limited  during  which  a  surviving  spouse  was  obliged  to  make  his  or 
her  election,  under  penalty  of  being  deemed  and  held  to  have  elected  to 
take  under  the  will,  because  of  neglect  or  failure  to  make  such  election 
during  such  limited  period.  See  Beck's  Estate,  265  Pa.  51  (1919).  The 
said  two-year  period  is  applicable  only  to  estates  of  testates  dying  on  or 
after  December  31,  1917."  Per  Hughes,  P.  ].,  in  Young's  Est, 
I  Wash.  250. 

The  Wills  Act  of  June  7,  1917,  P.  L.  403,  is  retroactive  so  that  where 


WILLS  ACT— SECTIONS  26-27  167 

testatrix  made  her  will  prior  to  the  passage  of  the  act,  but  did  not  die 
until  after  that  date,  the  Wills  Act  applies.  A  will  being  ambulatory 
speaks  as  of  the  date  of  death.  In  so  holding  Miller,  J.,  said,  inter  alia : 

"The  paper  in  question  bears  date  and,  if  executed,  was  written  on  the 
8th  day  of  September,  1914,  prior  to  the  passage  of  the  Wills  Act  of  1917. 
She  died,  however,  after  its  passage,  and  the  provisions  of  the  Act  of 
1917  by  its  terms  apply  to  persons  dying  on  or  after  said  day,  irrespective 
of  the  date  of  the  execution  of  the  will.  That  the  section  just  quoted 
gives  retrospective  effect  to  the  act  seems  to  be  settled  in  Auberd's  App., 
109  Pa.  447,  and  seems  to  be  an  answer  to  the  contention  that  to  apply 
the  provisions  of  the  Act  of  1917  to  a  will  made  in  1914  does  not  involve 
retroactive  legislation,  no  vested  rights  existing  and  no  violation  of  con- 
tracts forbidden  by  the  Constitution  being  involved,  in  view  of  the  well 
known  principle  of  law  that  wills,  being  ambulatory,  speak  of  the  date  of 
the  death  of  the  testator."  Perry's  Estate,  67  P.  L.  J.  216. 

The  provisions  of  the  Wills  Act  do  not  effect  a  case  where  the  decedent 
died  on  August  30,  1917.  See  Gamier  v.  Gamier,  16  North.  205,  at  p.  215 ; 
Mulligan's  Est,  47  Pa.  C.  C.  546,  28  Dist.  309. 

253.    REPEALER. 

SECTION  27.  The  following  acts  and  parts  of  acts  of  assembly 
are  hereby  repealed  as  respectively  indicated,  but  so  far  only  as 
relates  to  the  estates,  real  and  personal,  of  any  person  or  persons 
dying  on  or  after  the  thirty-first  day  of  December,  1917.  The 
repeal  of  the  first  section  of  an  act  shall  not  repeal  the  enacting 
clause. 

Sections  3,  4,  6  and  7  of  an  act  entitled  "An  act  concerning 
the  probates  of  written  and  nuncupative  wills,  and  for  confirming 
devises  of  lands,"  passed  in  1705,  i  Sm.  L.  33,  absolutely. 

Section  23  of  an  act  entitled  "An  act  directing  the  descent  of 
intestates'  real  estates,  and  distribution  of  their  personal  estates, 
and  for  other  purposes  therein  mentioned,"  passed  April  19,  1794, 
3  Sm.  L.  143,  absolutely. 

Section  10  of  an  act  entitled  "An  act  supplementary  to  the  act, 
entitled  'An  act  directing  the  descent  of  intestates  real  estates, 
and  distribution  of  their  personal  estates,  and  for  other  purposes 
therein  mentioned,'  "  passed  April  4,  1797,  3  Sm.  L.  296,  abso- 
lutely. 

Section  1 1  of  an  act  entitled  "An  act  supplementary  to  the  sev- 
eral acts  of  this  commonwealth  concerning  partitions,  and  for  other 
purposes  therein  mentioned,"  approved  April  7,  1807,  P.  L.  155, 
absolutely. 

An  act  entitled  "An  act  to  prevent  devises  and  legacies  from 


168  WILLS  ACT— SECTION  27 

lapsing  in  certain  cases,"  approved  March  19,  1810,  P.  L.  96, 
absolutely. 

Section  i  of  an  act  entitled  "An  act  relative  to  dower,  and  for 
other  purposes,"  approved  April  I,  1811,  P.  L.  198,  absolutely. 

Section  n  of  an  act  entitled  "An  act  relating  to  registers,  and 
registers'  courts,"  approved  March  15,  1832,  P.  L.  135,  absolutely. 

Section  35  of  an  act  entitled  "An  act  relating  to  orphans' 
courts,"  approved  March  29,  1832,  P.  L.  190,  absolutely. 

An  act  entitled  "An  act  relating  to  last  wills  and  testaments," 
approved  April  8,  1833,  P.  L.  249,  absolutely. 

Section  2  of  an  act  entitled  "An  act  further  to  regulate  proceed- 
ings in  courts  of  justice,  and  for  other  purposes,"  approved  May 
6,  1844,  P.  L.  564,  absolutely. 

An  act  entitled  "A  supplement  to  an  act  relating  to  last  wills 
and  testaments,  passed  the  eighth  day  of  April,  eighteen  hundred 
and  thirty-three,  approved  January  27,  1848,  P.  L.  16,  absolutely. 

Sections  7  and  n  of  an  act  entitled  "A  supplement  to  an  act, 
entitled  'An  act  relative  to  the  LeRaysville  Phalanx,'  passed  March, 
Anno  Domini  one  thousand  eight  hundred  and  forty-seven,  and 
relative  to  obligors  and  obligees,  to  secure  the  right  of  married 
women,  in  relation  to  defalcation,  and  to  extend  the  boundaries 
of  the  borough  of  Ligonier,"  approved  April  n,  1848,  P.  L.  536, 
absolutely. 

Section  n  of  an  act  entitled  "An  act  relating  to  corporations 
and  to  estates  held  for  corporate,  religious  and  charitable  uses," 
approved  April  26,  1855,  P.  L.  328,  in  so  far  as  it  relates  to  estates, 
real  or  personal,  bequeathed  or  devised. 

Section  i  of  an  act  entitled  "An  act  to  amend  certain  defects  of 
the  law  for  the  more  just  and  safe  transmission  and  secure  enjoy- 
ment of  real  and  personal  estate,"  approved  April  27,  1855,  P-  L. 
368,  in  so  far  as  it  relates  to  devises. 

Sections  i  and  6  of  an  act  entitled  "An  act  relating  to  certain 
duties  and  rights  of  husband  and  wife,  and  parents  and  children," 
approved  May  4,  1855,  P.  L.  430,  absolutely. 

Section  i  of  an  act  entitled  "An  act  relating  to  dowers,"  ap- 
proved April  20,  1869,  P.  L.  77,  absolutely. 

An  act  entitled  "A  supplement  to  an  act  relating  to  last  wills 
and  testaments,  approved  the  eighth  day  of  April,  one  thousand 
eight  hundred  and  thirty-three,  providing  for  the  time  from  which 
wills  shall  speak  and  take  effect,  for  the  vesting  of  lapsed  or  void 


WILLS  ACT— SECTION  27  169 

devises  of  real  estate  in  the  residuary  devisee,  and  for  the  execu- 
tion of  powers  over  real  and  personal  estate  by  the  person  in  whom 
such  powers  are  vested,"  approved  June  4,  1879,  P.  L.  88,  abso- 
lutely. 

An  act  entitled  "An  act  to  enable  mothers  in  certain  cases  to  ap- 
point testamentary  guardians,"  approved  June  10,  1881,  P.  L.  96, 
absolutely. 

An  act  entitled  "An  act  to  enable  mothers,  in  certain  cases,  to 
appoint  testamentary  gaurdians,  being  a  supplement  to  an  act, 
bearing  the  same  title,  approved  June  tenth,  one  thousand  eight 
hundred  and  eighty-one,  and  also  a  supplement  to  an  act,  entitled 
'An  act  relating  to  certain  duties  and  rights  of  husband  and  wife, 
and  parents  and  children,'  approved  May  fourth,  one  thousand 
eight  hundred  and  fifty-five,"  approved  May  25,  1887,  P.  L.  264, 
absolutely. 

Section  5  of  an  act  entitled  "An  act  relating  to  husband  and 
wife,  enlarging  her  capacity  to  acquire  and  dispose  of  property, 
to  sue  and  be  sued,  and  to  make  a  last  will,  and  enabling  them  to 
sue  and  to  testify  against  each  other  in  certain  cases,"  approved 
June  8,  1893,  P.  L.  344,  absolutely. 

An  act  entitled  "An  act  declaring  the  construction  of  words  in 
a  deed,  will  or  other  instrument  importing  a  failure  of  issue,"  ap- 
proved July  9,  1897,  P.  L.  213,  in  so  far  as  it  relates  to  devises 
or  bequests  of  real  or  personal  estate. 

An  act  entitled  "An  act  to  amend  section  two  of  an  act,  en- 
titled 'An  act  further  to  regulate  proceedings  in  courts  of  justice, 
and  for  other  purposes,'  approved  the  sixth  day  of  May,  Anno 
Domini  one  thousand  eight  hundred  and  forty-four,  relating  to 
devises  and  legacies  to  brothers  or  sisters,  or  the  children  of  broth- 
ers or  sisters  of  any  testator,  and  preventing  the  lapse  thereof  in 
the  case  of  the  death  of  such  devisee  or  legatee  during  the  lifetime 
of  the  testator,"  approved  July  12,  1897,  P.  L.  256,  absolutely. 

An  act  entitled  "An  act  relating  to  elections  by  surviving  hus- 
bands or  wives  to  take  under  or  against  the  wills  of  decedents ;  to 
the  recording  thereof,  and  of  final  decrees,  where  parties  have 
failed  or  refused  to  elect  when  required  so  to  do ;  and  forbidding 
payments  to  such  parties  until  they  have  made  and  filed  their  elec- 
tion," approved  April  21,  1911,  P.  L.  79,  absolutely. 

An  act  entitled  "An  act  to  amend  section  eleven  of  an  act,  en- 
titled 'An  act  relating  to  corporations  and  to  estates  held  for  cor- 
porate, religious,  and  charitable  uses,'  approved  the  twenty-sixth 


170  WILLS  ACT— SECTION  27 

day  of  April,  one  thousand  eight  hundred  and  fifty  five,"  approved 
June  7,  1911,  P.  L.  702,  in  so  far  as  it  relates  to  estates,  real  or 
personal,  bequeathed  or  devised. 

An  act  entitled  "An  act  to  amend  an  act  approved  the  eighth 
day  of  April,  one  thousand  eight  hundred  thirty-three,  entitled 
'An  act  relating  to  last  wills  and  testaments,'  by  conferring  the 
same  rights  upon  the  mother  as  upon  the  father,"  approved  April 
J5»  I9I5»  P-  L.  124,  absolutely. 

An  act  entitled  "An  act  to  amend  an  act,  approved  the  tenth  day 
of  June,  one  thousand  eight  hundred  eighty-one,  entitled  'An  act 
to  enable  mothers  in  certain  cases  to  appoint  testamentary  guard- 
ians/ by  extending  certain  rights  to  mothers,"  approved  April 
21,  1915,  P.  L.  145,  absolutely. 

All  other  acts  of  assembly,  or  parts  thereof,  that  are  in  any  way 
in  conflict  or  inconsistent  with  this  act,  or  any  part  thereof,  are 
hereby  repealed,  so  far  as  relates  to  the  estates,  real  and  personal, 
of  any  person  or  persons  dying  on  or  after  the  thirty-first  day  of 
December,  1917. 


THE  REGISTER  OF  WILLS  ACT 

of 
June  7,  1917  (P.  L.  415). 


PRELIMINARY  NOTES  BY  COMMISSION. 

In  Section  5,  the  power  of  the  register  to  revoke  letters  of  ad- 
ministration is  stated,  in  accordance  with  the  existing  law. 

In  Section  8,  an  additional  remedy  is  provided  where  any  per- 
son having  in  his  possession  or  under  his  control  a  testamentary 
paper  conceals  or  withholds  the  same. 

In  Section  9,  the  register  is  given  additional  power  to  subpoena 
witnesses. 

In  Section  16,  the  probate  of  a  will  or  the  refusal  to  probate  it 
by  a  register  is  made  conclusive  unless  an  appeal  be  taken  within 
two  years  instead  of  three  as  the  present  law  provides,  and  the 
remedy  is  expressly  limited  to  an  appeal  from  the  register's  decree. 

In  Section  18,  provision  is  made  for  the  removal  of  contested 
will  cases  from  the  register's  office  to  the  orphans'  court,  in  order 
to  avoid  the  delays  that  sometimes  occur  under  the  present  practice. 

In  Section  21  (a),  it  is  provided  that  appeals  from  all  the  judi- 
cial acts  of  the  register  must  be  taken  within  two  years,  and  that 
the  period  may  be  limited  to  six  months  in  case  of  those  parties 
who  have  actual  notice  by  citation. 

TABLE  OF  CONTENTS. 

1917  Section 

Pamphlet  Number 

Laws  Herein 

The  Register  of  Wills   Act   415  254 

Section     i.  Oath  and  bond  of  register,  417  255 

(a)  Oath,     255 

(b)  Bond,    256 

1.  Form   and    approval,    256 

2.  Acknowledgment ;    recording  and  fil- 

ing of  bond, 257 

3.  Copies  of  record  of  bond  as  evidence,  258 

4.  Provisions    not   to    apply   to    certain 

counties,    259 

(c)  No  liability  on  bond  where  letters  granted 

under  order  of  court,   418  260 

Section    2.  Deputy   register,    261 

Section    3.  Jurisdiction  of  register,   262 

171 


172 


REGISTER  OF  WILLS  ACT— CONTENTS 


1917  Section 

Pamphlet      Number 

Laws  Herein 

Section  4.  Before  what  register  will  shou!d  be  pro- 
bated,    263 

Section  5.  Revocation  of  letters  of  administration 

by  register 264 

Section    6.  Probate  of   nuncupative   wills,    265 

Section  7.  Probate  of  copies  of  wills  proved  in» 

other  States  or  counties 419  266 

Section  8.  Citation  to  person  having  custody  of 

will ;  certification  to  orphans'  court, 267 

Section  9.  Subpoenas  to  witnesses ;  attachments ; 

witness'  fees  and  mileage,  268 

Section  10.  Commissions  or  rules  to  take  deposi- 
tions,    420  269 

Section  n.  Recording  and  filing  wills;  certified 

copies 270 

Section  12.  Wills  or  papers  in  other  than  English 

language,  271 

(a)  Translation   to    be    furnished,    filed,    and 

recorded,     271 

(b)  Effect  of    failure  to    furnish   translation,  421                272 
Section  13.  Recording     inventories     and     appraise- 
ments,      273 

Section  14.  Certified    copies    of    bonds,    inventories, 

accounts,  et  cetera,  to  be  furnished  by 

register,  274 

Section  15.  Filing  copies  of  wills  and  probates  in 

other  counties 275 

Section  16.  Effect  of  probate 422  276 

(a)  Conclusiveness 276 

(b)  When    no    probate    within    three    years; 

effect  as  to  conveyance  or  mortgages, . .  277 

Section  17.  Precept  by  register  to  common  pleas  for 

issue  d.  v.  n.,  278 

Section  18.  Certification  of  record  to  orphans' 

court  on  order  of  court,  423  279 

Section  19.  Certifying  record  to  orphans'  court, 

where  there  are   difficult  or  disputable 

questions,  424  280 

Section  20.  Caveats,  281 

(a)  Bond,    281 

(b)  Failure  to  give  bond,   282 

(c)  Costs  on  caveat  or  appeal 425  283 

(d)  Appeals  from  orders  as  to  security  and 

taxation  of  costs,   284 


REGISTER  OF  WILLS  ACT— SECTION  i  (a),  (&)  i  173 

1917  Section 

Pamphlet  Number 

Laws  Herein 

Section  21.  Appeals  to  the  orphans'  court,   285 

(a)  Period  for  appeal, 285 

(b)  Effect  of  appeal,   286 

Section  22.     Bill  of  costs,   287 

Section  23.  Procedure  to   collect  costs 426  288 

Section  24.  Register   to   collect   fifty   cents    for   use 

of  Commonwealth,    289 

Section  25.  Short  title  section,   290 

Section  26.  Repealer,     426-9  291 

254.  TITLE. 

AN  ACT 

Relating  to  the  qualifications,  jurisdiction,  powers  and  duties 
of  registers  of  wills,  and  regulating  proceedings  before  said  reg- 
isters, and  the  costs  thereof,  the  effects  of  their  acts,  and  appeals 
therefrom. 

255.  OATH  AND  BOND  OF  REGISTER,— OATH. 

SECTION  i.  (a)  Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  Commonwealth  of  Pennsylvania  in  Gen- 
eral Assembly  met,  and  it  is  hereby  enacted  by  the  authority  of 
the  same,  That  every  person  who  shall  be  elected  or  appointed 
to  the  office  of  register  of  wills,  before  he  shall  enter  upon  the 
duties  of  the  office,  shall  make  oath  or  affirmation  to  support  the 
constitution  of  the  United  States  and  the  constitution  of  this 
commonwealth,  and  to  perform  the  duties  of  the  office  of  register 
with  fidelity. 

NOTE. — This  is  the  first  part  of  Section  I  of  the  Act  of  March  15,  1832, 
P.  L.  135,  4  Purd.  4075,  which  was  derived  from  the  provisions  of  the 
federal  and  state  constitutions,  Section  3  of  the  Act  of  March  14,  1777, 
i  Sm.  L.  443;  Section  i  of  the  Act  of  March  12,  1791,  3  Sm.  L.  8;  and 
Section  9  of  the  Act  of  April  6,  1830,  P.  L.  272. 

In  the  first  line,  the  words  "elected  or"  have  been  inserted. 

256.  BOND,— FORM  AND  APPROVAL. 

(&)  i.  He  shall  also,  with  one  or  more  sureties,  to  be  approved 
by  the  judge  or  judges,  if  there  be  more  than  one,  of  the  orphans' 
court  of  the  county  for  which  the  register  shall  be  elected  or  ap- 
pointed, and  also  by  the  governor,  give  a  joint  and  several  bond 
to  the  commonwealth,  in  a  sum  equal  to  half  the  sum  prescribed 


174         REGISTER  OF  WILLS  ACT— SECTION  i  (fe)  i,  2,  3 

by  law  for  the  official  bond  of  the  sheriff  for  the  time  being  of  the 
same  county,  with  condition  faithfully  to  execute  the  duties  of 
his  said  office,  and  well  and  truly  to  account  for  and  pay,  accord- 
ing to  law,  all  moneys  received  by  him  for  the  use  of  the  common- 
wealth, and  to  deliver  up  the  books,  seals,  records  and  other  writ- 
ings, belonging  to  his  said  office,  whole,  safe  and  unde faced,  to 
his  successor  in  office ;  which  said  bond  shall  be  for  the  use  of  all 
persons  concerned,  and  for  the  relief  of  all  who  may  be  aggrieved 
by  the  acts  or  neglect  of  such  register. 

NOTE. — This  is  the  remainder  of  Section  I  of  the  Act  of  1832.  The 
provision  of  the  Act  of  1832  was  that  the  sureties  should  be  approved  by 
"two  judges  of  the  Common  Pleas."  Section  2  of  the  Act  of  March  24, 
1877,  P.  L.  37,  4  Purd.  4076,  provided  that  in  counties  having  separate 
orphans'  courts  the  approval  should  be  by  the  judge  or  judges  of  the 
orphans'  court,  except  in  counties  having  less  than  300,000  inhabitants. 
Section  i  of  the  Act  of  April  27,  1911,  P.  L.  87,  6  Purd.  7297,  amends  the 
act  of  1877  by  omitting  the  proviso.  There  seems  to  be  no  good  reason 
why  this  section  should  not  apply  in  all  counties.  Where  there  is  no 
separate  orphans'  court,  the  approval  will  be  by  the  same  judges  as  under 
the  Act  of  1832,  but  they  will  act  in  the  matter  as  judges  of  the  orphans' 
court,  which  seems  appropriate. 

257.  ACKNOWLEDGMENT,   RECORDING   AND    FIL- 

ING OF  BOND. 

2.  Every  person  elected  or  appointed  as  aforesaid  shall  cause 
the  bond  hereinbefore  prescribed,  being  duly  acknowledged  by 
him  and  his  sureties,  before  a  judge  of  the  orphans'  court  of  the 
county,  to  be  recorded  by  the  recorder  of  deeds  of  the  county, 
and  as  soon  afterwards  as  convenient,  to  be  transmitted  into  the 
office  of  the  secretary  of  the  commonwealth  for  custody,  of  which 
transmission  he  shall  be  entitled  to  receive  the  secretary's  certifi- 
cate, without  fee  or  reward. 

NOTE. — This  is  Section  2  of  the  Act  of  March  15,  1832,  4  Purd.  4075, 
which  was  founded  on  Section  i  of  the  Act  of  March  12,  1791,  3  Sm. 
L.  8. 

It  is  now  altered  by  inserting  in  the  first  line  the  words  "elected  or," 
and  by  substituting  "judge  of  the  orphans'  court  of  the  county"  for 
"magistrate  of  the  city  or  county  respectively." 

258.  COPIES  OF  RECORD  OF  BOND  AS  EVIDENCE. 

3.  Copies  of  the  record  of  the  official  bond  of  any  register, 
acknowledged  and  recorded  as  aforesaid,  and  duly  certified  by 
the  recorder  of  deeds  for  the  time  being,  shall  be  good  evidence, 


REGISTER  OF  WILLS  ACT— SECTIONS  i  (6)  3,  4  (O-2        175 

in  any  action  brought  against  him  or  his  sureties,  on  such  bond, 
according  to  its  form  and  effect,  in  the  same  manner  as  the 
original  would  be,  if  produced  and  offered  in  evidence. 

NOTE. — This  is  Section  3  of  the  Act  of  March  15,  1832,  4  Purd.  4076, 
which  was  founded  on  Section  i  of  the  Act  of  March  12,  1791,  3  Sm.  L.  8. 

259.  PROVISIONS    NOT    TO    APPLY    TO    CERTAIN 

COUNTIES. 

4.  The  provisions  of  this  clause  shall  not  apply  to  registers  of 
wills  in  counties  having  over  eight  hundred  thousand  and  under 
one  million  five  hundred  thousand  inhabitants  according  to  the 
last  preceding  United  States  census. 

NOTE.— This  is  inserted  to  exclude  counties  within  the  provisions  of  the 
Act  of  April  28,  1915,  P.  L.  198,  5  Purd.  5360. 

260.  NO    LIABILITY    ON   BOND   WHERE   LETTERS 

GRANTED  UNDER  ORDER  OF  COURT. 

(c)  Whenever  letters  testamentary  or  of  administration  shall 
have  been  heretofore,  or  shall  be  hereafter  granted  bv  the  register 
of  wills  of  any  of  the  counties  in  this  commonwealth,  by  the 
direction  and  in  pursuance  of  an  order  of  the  orphans'  court,  and 
conformably  thereto,  the  said  register  and  his  sureties  shall  not 
be  liable  on  the  register's  official  bond  for  any  loss  or  damage 
which  may  have  accrued  or  which  may  hereafter  accrue  to  any 
person  in  consequence  of  the  compliance  of  said  register  with  the 
said  order  of  the  orphans'  court. 

NOTE. — This  is  Section  10  of  the  Act  of  April  3,  1851,  P.  L.  305,  i  Purd. 
1080. 

261.  DEPUTY   REGISTER. 

SECTION  2.  Every  register  shall  appoint  and  keep  a  deputy,  to 
officiate  in  his  absence,  for  whose  conduct  he  and  his  sureties 
shall  be  accountable ;  and  such  deputy  shall  be  capable  in  law  to 
take  the  probate  of  wills  and  testamentary  papers,  and  to  grant 
letters  testamentary  and  of  administration,  and  to  do  whatever 
else  by  law  appertains  to  the  office  of  register. 

NOTE. — This  is  Section  4  of  the  Act  of  March  15,  1832,  4  Purd.  4076, 
which  was  founded  on  Section  6  of  the  Act  of  March  14,  1777,  i  Sm.  L. 
443,  with  the  addition  of  the  provision  as  to  liability  of  the  sureties. 

The  words  "testamentary  papers"  have  been  substituted  for  "testaments," 
and  the  words  "testamentary  and"  have  been  inserted  after  "letters." 


176  REGISTER  OF  WILLS  ACT— SECTIONS  3-4. 

262.  JURISDICTION  OF  REGISTER. 

SECTION  3.  Every  register  qualified  to  act,  as  aforesaid,  shall 
have  jurisdiction,  within  the  county  for  which  he  shall  have  been 
elected  or  appointed,  of  the  probate  of  wills  and  testamentary 
papers,  of  the  granting  of  letters  testamentary  and  of  administra- 
tion, of  the  passing  and  filing  of  the  accounts  of  executors  and 
administrators,  and  of  any  other  matter  whereof  the  jurisdiction 
may  be  at  any  time  expressly  annexed  to  his  said  office ;  and  the 
act  of  any  register,  in  any  matter  whereof  another  register  has 
the  exclusive  jurisdiction,  shall  be  void  and  of  no  effect. 

NOTE.— This  is  Section  5  of  the  Act  of  March  15,  1832,  4  Purd.  4077, 
which  was  new  in  that  act. 

The  words  "elected  or"  have  been  inserted  in  line  3.  The  words  "testa- 
mentary papers"  have  been  substituted  for  "testaments"  in  line  4,  and  the 
words  "and  guardians"  omitted  in  line  6. 

Section  5  of  the  Act  of  April  6,  1791,  3  Sm.  L.  20,  4  Purd.  4079,  makes 
it  the  duty  of  the  register  to  give  notice  of  legacies  to  public  corporate 
bodies.  Section  66  of  the  Act  of  February  24,  1834,  i  Purd.  noo,  imposed 
that  duty  upon  the  executors,  and  seems  to  have  superseded  the  above 
section  of  the  Act  of  1791,  which  is  therefore  recommended  for  repeal. 
See  the  note  to  Section  18  of  the  Fiduciaries  Act,  (see  459-464  supra) 
which  is  founded  on  Section  66  of  the  Act  of  1834. 

See  Cook's  Est,  47  Pa.  C.  C.  84,  27  Dist.  1006. 

263.  BEFORE  WHAT  REGISTER  WILL  SHOULD  BE 

PROBATED. 

SECTION  4.  Wills  shall  be  probated  only  before  the  register  of 
wills  of  the  county  within  which  was  the  family  or  principal  resi- 
dence of  the  decedent,  at  the  time  of  his  decease,  and,  if  the  de- 
cedent has  no  such  residence  in  this  commonwealth,  then  only 
before  the  register  of  the  county  where  the  principal  part  of  the 
goods  and  estate  of  such  decedent  within  this  commonwealth 
shall  be. 

NOTE. — This  is  a  new  section,  modeled  upon  Section  2  (a)  (see  355 
infra)  of  the  Fiduciaries  Act,  which  relates  to  the  granting  of  letters 
testamentary  and  of  administration. 

"Section  4  of  the  Register  of  Wills  Act  of  1917  is  mandatory  in  its 
requirement  that  wills  shall  be  probated  only  before  the  register  of  wills 
of  the  county  within  which  was  the  family  or  principal  residence  of  the 
decedent  at  the  time  of  his  death,  and,  therefore,  in  view  of  the  un- 
contradicted  evidence  that  this  testator's  family  residence  at  the  time  of 
his  death  was  in  Delaware  County,  the  register  of  wills  of  Philadelphia 


REGISTER  OF  WILLS  ACT— SECTIONS  4-5  177 

County  had  no  jurisdiction  to  probate  his  will.     See  Wall  v.  Wall,  123 
Pa-  545"    Gummey,  J.,  in  Cook's  Est.,  47  Pa.  C.  C.  84,  27  Dist.  1006. 

Where  a  testator  has  two  residences  in  different  counties,  one  in  a  city 
and  one  in  the  country,  and  lives  in  both  of  them  at  different  times  in  the 
year,  the  question  which  of  them  is  to  be  considered  as  his  family  or 
principle  residence  is  one  of  intention.  (See  Bumpus's  Est.,  23  Dist.  654, 
citing  Evan's  Est.,  17  Dist.  in.)  and  where  such  testator  directs  his  at- 
torney to  state  in  the  will,  that  he  was  a  resident  of  the  county  in  which 
his  city  house  was  situated,  probate  in  that  county  will  be  sustained 
although  he  voted  and  paid  the  personal  tax  in  the  county  where  his 
country  house  was  situated.  Winsor's  Est.,  47  Pa.  C.  C.  105,  27  Dist. 
1010,  32  York  131 ;  affirmed  in  264  Pa.  552,  107  Atl.  888,  on  the  ground 
that  when  decedent  declared  his  residence  in  his  will  it  was  his  last 
formal  declaration  of  intention  and  he  did  nothing  thereafter  to  indicate 
the  choice  of  a  different  residence. 

264.     REVOCATION  OF  LETTERS  OF  ADMINISTRA- 
TION BY  REGISTER. 

SECTION  5.  Any  register  of  wills  shall  have  power  to  revoke 
letters  of  administration  granted  by  him  whenever  it  shall  be 
made  to  appear  to  him  that  such  letters  have  been  granted  to,  or 
on  the  nomination  of,  persons  who  are  not  the  next  of  kin  of  the 
decedent  entitled  to  administer,  or  whenever,  after  the  granting 
of  letters  of  administration,  a  will  of  the  decedent  shall  be  duly 
proved  and  admitted  to  probate. 

NOTE. — This  is  a  new  section,  intended  to  be  declaratory  of  the  exist- 
ing law  and  to  remove  any  possible  doubt  as  to  the  original  jurisdiction 
of  the  register  in  the  cases  mentioned,  as  distinguished  from  the  revoca- 
tion of  letters  testamentary. 

See  form  71. 

Where  letters  of  administration  have  been  granted  to  a  niece  and 
nephew,  there  being  no  children,  and  without  information  to  the  register  of 
other  nieces  and  nephews,  the  register  may  revoke  said  letters  in  the  in- 
terest of  all  concerned,  and  to  correct  an  honorable  misunderstanding. 

In  an  appeal  from  decision  of  register  revoking  letters  of  administration, 
the  court,  in  an  opinion  of  Harman,  J.,  said,  inter  alia: 

"Prior  to  the  passage  of  the  Act  referred  to,  (Sec.  5)  there  was  no 
statutory  enactment  authorizing  the  register  of  wills  to  revoke  letters, 
yet  it  was  held  in  numerous  cases  since  the  old  Act  of  1832,  which  here- 
tofore governed,  that  the  register  had  a  right  to  revoke  the  letters  of  ad- 
ministration for  cause  shown. 

These  decisions,  (Headley's  Est.,  39  Pa.  C.  C.  165,  21  Dist.  586;  Mc- 
Caffrey's Est.,  38  Pa.  331;  Shomo's  Appeal,  57  Pa.  356;  Neidig's  Est,  183 
Pa.  492)  and  many  others  of  like  import,  establish  the  right  of  the  register 
to  revoke  in  the  instances  cited  in  the  absence  of  any  direct  statutory  enact- 
12 


178  REGISTER  OF  WILLS  ACT— SECTIONS  5-6  . 

ment  giving  him  that  power.  And  if  Section  5  of  the  Act  of  1917,  referred 
to,  was  merely  intended  to  be  declaratory  of  the  existing  law,  we  seriously 
question  whether  the  register  is  now  limited  in  his  power  to  revoke  letters 
in  the  two  instances  cited  in  Section  5.  He  has  said  in  the  order  filed 
revoking  the  letters  that  he  does  it  "to  correct  an  honorable  misunder- 
standing in  the  granting  of  the  letters  in  the  first  instance."  Of  the  four 
reasons  given  by  him  in  his  order,  this  is  the  only  one  to  which  we  are 
inclined  to  give  serious  consideration.  The  others  seem  to  us  to  be  with- 
out weight,  and  alone,  would  not  justify  his  decree."  Sharpless'  Est.,  28 
Dist.  746,  15  Del.  16,  20  Luz.  161. 

A  petition  addressed  to  the  orphans'  court  to  revoke  letters  of  ad- 
ministration, will  be  dismissed.  Such  petition  must  be  addressed  to  the 
register  of  wills.  The  court,  per  Wilhelm,  P.  J.,  held,  inter  alia: 

"Under  the  authorities  cited  it  is  our  duty  to  dismiss  this  petition 
because  the  attempt  to  have  the  orphans'  court  exercise  its  jurisdiction  is 
premature.  This  is  the  law  as  it  stood  before  the  Register  of  Wills  Act 
of  1917,  which  contains  this  clause:  (Section  5,  supra.)  This  is  a  new 
section  intended  to  be  declaratory  of  the  existing  law  and  to  remove  any 
possible  doubt  as  to  the  original  jurisdiction  of  the  register  in  the  cases 
mentioned."  Wehry's  Est.,  47  Pa.  C.  C.  486,  15  Schuyl.  262,  33  York  68. 

A  register  of  wills,  having  admitted  a  will  to  probate  and  granted 
letters  testamentary  thereon,  is  without  jurisdiction,  upon  the  presentation 
of  an  alleged  later  will,  to  revoke  said  letters.  A  register  of  wills  may 
revoke  letters  of  administration  improvidently  granted  but  not  letters  tes- 
tamentary. The  orphans'  court  is  without  jurisdiction  to  review  a  reg- 
ister's decree  admitting  a  will  to  probate  except  on  appeal  as  provided 
by  the  Act  of  June  7,  1917,  Section  21,  P.  L.  415.  The  court,  per  Corbet, 
P.  J.,  held,  inter  alia: 

"That  the  register  was  without  jurisdiction  to  entertain  the  petition  for 
the  revocation  of  the  letters  testamentary  referred  to.  Under  Section  5 
of  the  act  last  referred  to,  the  register  has  power  to  revoke  letters  of 
administration  granted  by  him,  but  no  such  power  is  given  him  with  re- 
spect to  letters  testamentary."  Burtop's  Est,  66  P.  L.  J.,  65. 

265.  PROBATE  OF  NUNCUPATIVE  WILLS. 

SECTION  6.  No  nuncupative  will  shall  be  admitted  to  probate, 
nor  shall  letters  testamentary  thereon  be  issued  till  fourteen  days 
after  the  day  of  the  death  of  the  decedent  be  fully  expired,  nor 
shall  any  nuncupative  will,  at  any  time,  be  admitted  to  probate, 
unless  process  have  first  issued  to  call  in  the  surviving  spouse  of 
the  decedent,  if  any,  and  such  of  his  or  her  relations  or  next  of 
kin  as  would  be  entitled  to  the  administration  of  his  or  her  estate 
in  case  of  intestacy,  to  contest  the  same,  if  they  please. 

NOTE.— This  is  Section  10  of  the  Act  of  March  15,  1832,  i  Purd.  1068, 
which  was  derived  in  part  from  Section  5  of  the  Act  of  1705,  I  Sm.  L. 
33.  In  the  present  draft,  "surviving  spouse"  is  substituted  for  "widow." 


REGISTER  OF  WILLS  ACT— SECTIONS  6-7-8  179 

Section  n  of  the  Act  of  1832,  i  Purd.  1068,  also  relating  to  nuncupative 
wills,  is  embodied  in  Section  4  (c)  of  the  new  Wills  Act  (see  220  supra.) 

266.  PROBATE  OF  COPIES  OF  WILLS  PROVED  IN 

OTHER  STATES  OR  COUNTIES. 

SECTION  7.  Copies  of  wills  and  testaments  proved  in  any  other 
state,  territory  or  possession  of  the  United  States  of  America,  or 
any  foreign  country  according  to  the  laws  thereof,  and  duly  au- 
thenticated, may  be  offered  for  probate  before  any  register  having 
jurisdiction,  and  proceedings  thereon  may  be  had,  with  the  same 
effect,  so  far  as  respects  the  granting  of  letters  testamentary,  or 
of  administration  with  the  will  annexed,  as  upon  the  originals ; 
and  if  the  executor  or  other  person  producing  any  such  copy  shall 
produce  also  therewith  a  copy  of  the  record  of  the  proceedings 
for  the  probate  of  the  original,  and  of  the  letters  testamentary, 
or  other  authority  to  administer,  issued  thereon,  attested  by  the 
person  having  power  to  receive  the  probate  of  such  original,  in 
the  place  where  it  was  proved,  with  the  seal  of  office,  if  there  be 
one,  annexed,  together  with  the  certificate  of  the  chief  judge  or 
presiding  magistrate  of  the  state,  country,  county  or  district  where 
such  original  was  proved,  that  the  same  appears  to  have  been 
duly  proved,  and  to  be  of  force,  and  that  the  attestation  is  in  due 
form,  such  copies  and  proceedings  shall  be  deemed  sufficient 
proof,  unless  the  contrary  be  shown,  for  the  granting  of  letters 
testamentary  or  of  administration  with  the  will  annexed,  as -the 
case  may  require,  without  the  production  or  examination  of  the 
witnesses  attesting  such  will. 

NOTE.— This  is  Section  12  of  the  Act  of  March  15,  1832,  i  Purd.  1068, 
which  was  new  in  that  act.  The  repeal  of  Section  i  of  the  Act  of  1705, 
i  Sm.  L.  33,  is  recommended. 

See  form  46. 

267.  CITATION  TO  PERSON  HAVING  CUSTODY  OF 

WILL;     CERTIFICATION    TO    ORPHANS' 
COURT. 

SECTION  8.  The  register  having  jurisdiction,  as  aforesaid,  shall, 
at  the  instance  of  any  person  interested,  issue  a  citation  to  any 
person  having  the  possession  or  control  of  a  testamentary  writing, 
alleged  to  be  the  last  will  and  testament  of  a  decedent,  requiring 
him  to  produce  and  deposit  the  same  in  his  office  for  probate; 
and  if  such  person  shall  conceal  or  withhold  such  writing,  during 
the  space  of  fifteen  days,  after  being  personally  served  with  a 


i8o  REGISTER  OF  WILLS  ACT— SECTIONS  8-9  . 

citation  issued  in  the  manner  aforesaid,  it  shall  be  the  duty  of  the 
register  forthwith  to  certify  the  record  of  the  proceeding  to  the 
orphans'  court  of  said  county,  and  the  said  court,  upon  petition 
of  any  person  interested,  shall  proceed  to  enfore  obedience  to 
said  citation  by  attachment  as  in  cases  of  citation  issued  from 
said  court. 

NOTE.— This  is  Section  7  of  the  Act  of  March  15,  1832,  P.  L.  136,  I 
Purd.  1067,  which  was  new  in  that  act. 

The  words  following  "manner  and  form  aforesaid,"  and  providing  a 
remedy  by  attachment  in  the  orphans'  court,  are  submitted  for  the  pro- 
vision of  the  Act  of  1832  that  the  person  "shall  be  liable  to  an  indictment 
as  for  a  misdemeanor,  or  to  an  action  for  damages  by  the  person  ag- 
grieved." 

The  provision  quoted  seems  to  be  ineffectual,  since  no  punishment  for 
the  "misdemeanor"  is  prescribed,  and  it  would  usually  be  difficult  if  not 
impossible  to  prove  damages.  It  has  been  held  that,  under  the  Act  of 
1832,  the  orphans'  court  will  not  attach  for  failure  to  obey  the  citation 
issued  by  the  register;  McDonald's  Est.,  14  Phila.  253.  The  change  rec- 
ommended would  therefore  seem  to  be  advisable. 

See  forms  32,  72. 

"If  the  forgery  (of  a  will)  was  personally  known  to  the  alleged  testa- 
tor, he  could,  if  competent,  clear  up  the  matter  by  another  will, — contain- 
ing, if  he  chooses,  merely  a  clause  of  revocation, — except  in  those  rare 
cases  where  the  alleged  will  would  be  irrevocable  because  contractually 
made  upon  sufficient  consideration,  in  which  event  1  have  no  doubt  he 
could  maintain  a  bill  quia  timet.  So,  too,  it  would  lie  at  the  instance  of 
anybody  in  interest,  if  the  alleged  testator  was  incompetent.  If  the  paper 
becomes  known  after  his  death,  Sections  7  and  8  of  the  Act  of  March 
15,  1832,  P.  L.  137,  and  Sections  8  and  9  of  the  Act  of  June  7,  1917,  P. 
L.  415,  provide  a  complete  remedy  to  compel  the  production  of  the  docu- 
ment, after  which  a  caveat  duly  prosecuted  would  result  in  a  conclusive 
determination  of  the  question  of  validity,  either  by  a  decree  of  the  reg- 
ister of  wills  or  the  orphans'  court,  or  by  judgment  on  the  verdict  of  a 
jury  after  issue  awarded.  From  such  a  proceeding  the  parties  claiming 
under  the  alleged  will  could  not  withdraw,  nor  could  they  enter  a  dis- 
continuance or  suffer  a  nonsuit.  In  every  contingency,  therefore,  we  have 
a  statutory  proceeding,  providing  a  complete  and  therefore  an  exclusive 
remedy."  Per  Mr.  Justice  Simpson  in  dissenting  opinion  in  Fleming's 
Est.,  265  Pa.  399,  109  Atl.  265. 

268.     SUBPOENAS     TO     WITNESSES;     ATTACH- 
MENTS; WITNESS  FEES  AND  MILEAGE. 

SECTION  9.  Whenever  any  testamentary  writing  shall  be  offered 
for  probate,  or  application  shall  be  made  for  letters  testamentary 
or  of  administration,  before  any  register  having  jurisdiction  there- 


REGISTER  OF  WILLS  ACT— SECTIONS  9-10  181 

of,  such  register  shall  have  power  to  issue  a  subpoena,  with  or 
without  a  clause  of  duces  tecum,  to  any  person  whose  name  may 
be  subscribed  to  such  testamentary  writing  as  a  witness,  or  who 
may  be  alleged  to  him  to  be  otherwise  capable  of  proving  the  due 
execution  of  such  testamentary  writing,  or  to  any  person  who 
may  be  a  material  witness  in  the  matter  of  such  probate  or  of  the 
granting  of  letters  testamentary  or  of  administration,  command- 
ing him,  under  a  penalty  of  three  hundred  dollars,  to  appear  be- 
fore said  register  at  his  office,  at  a  day  certain,  not  less  than  five 
days  from  the  service  of  such  subpoena,  and  depose  and  testify 
what  he  may  know  concerning  the  execution  of  such  writing  or 
otherwise  concerning  such  probate  or  the  granting  of  letters ;  and 
if  such  person,  being  subpoenaed  as  aforesaid,  shall  refuse  or 
neglect  to  appear  as  commanded,  the  register  shall  have  power 
to  issue  an  attachment  against  such  witness  to  compel  his  ap- 
pearance, or  the  party  aggrieved  may  have  an  action  against  said 
witness  to  recover  the  said  penalty,  in  the  manner  allowable  by 
law  in  cases  of  subpoenas  issued  to  witnesses  by  the  courts  of 
common  pleas.  Witnesses  appearing  before  the  register  in  obedi- 
ence to  subpoenas  as  aforesaid  shall  be  entitled  to  the  same  fees 
and  mileage  as  are  allowed  by  law  to  witnesses  in  the  orphans' 
court. 

NOTE. — This  is  Section  8  of  the  Act  of  March  15,  1832,  i  Purd.  1067, 
which  was  new  in  that  act.  It  is  now  extended  to  include  applications 
for  letters  as  well  as  for  probate,  and  to  apply  to  all  witnesses  and  not 
merely  the  subscribing  witnesses.  A  subpoena  instead  of  a  citation  is 
provided  for,  and,  by  omitting  words  "such  person  being  within  the 
county,  or  within  thirty  miles  of  the  office  of  said  register,"  the  subpoena 
is  made  to  operate  throughout  the  state.  The  provision  for  witness  fees 
and  mileage  is  new. 

Under  Section  8  of  the  Act  of  1832,  it  has  been  held  that  the  register 
has  no  power  to  summon  any  but  the  subscribing  witnesses :  Burns's 
Will,  ii  Phila.  35;  Com.  v.  Bunn,  71  Pa.  405. 

See  form  33.  See  Fleming's  Est.,  265  Pa.  399,  109  Atl.  265.  (See  267 
supra.) 

269.     COMMISSIONS  OR  RULES  TO  TAKE  DEPOSI- 
TIONS. 

SECTION  10.  On  the  application  of  any  person  interested,  every 
register  shall  have  power  to  issue  commissions  or  rules  to  take 
the  depositions  of  witnesses  in  other  counties  or  states,  or  in 
foreign  countries,  in  all  cases  within  his  jurisdiction. 


1 82         REGISTER  OF  WILLS  ACT— SECTIONS  10-11-12  (a) 

NOTE.— This  is  Section  9  of  the  Act  of  March  15,  1832,  4  Purd.  4079, 
which  was  new  in  that  act. 

It  is  now  altered  by  adding  the  words  "or  rules"  after  "commissions," 
and  by  omitting,  at  the  end,  the  words  "upon  interrogatories  filed  in  his 
office."  The  purpose  of  these  changes  is  to  permit  the  taking  of  deposi- 
tions on  rule,  without  written  interrogatories. 

See  form  34. 

270.  RECORDING  AND  FILING  WILLS;   CERTIFIED 

COPIES. 

SECTION  ii.  All  original  wills,  after  probate,  and  the  copies  of 
all  original  wills  produced  under  the  provisions  of  this  act,  shall 
be  recorded  and  filed  by  the  register  of  the  respective  county,  and 
shall  remain  in  his  office,  except  when  required  to  be  had  before 
a  higher  tribunal,  by  certiorari,  or  otherwise,  and  if  removed  for 
such  cause,  they  shall  be  returned  in  due  course  to  the  office  where 
they  belong;  and  the  copies  of  all  the  probates  thereof,  under  the 
public  seals  of  the  courts  or  officers  where  the  same  may  have 
been,  or  shall  be  so  taken  or  granted  respectively,  except  copies 
of  probates  of  such  wills  and  testaments  as  shall  appear  to  be 
annulled,  disproved  or  revoked,  shall  be  adjudged  and  are  hereby 
enacted  to  be  matter  of  record,  and  good  evidence  to  prove  the 
gift  or  devise  thereby  made. 

NOTE. — This  is  Section  17  of  the  Act  of  March  15,  1832,  i  Purd.  1072, 
which  was  derived  in  part  from  Section  i  of  the  Act  of  1705,  i  Sm.  L.  33. 

271.  WILLS  OR  PAPERS  IN  OTHER  THAN  ENGLISH 

LANGUAGE;— TRANSLATION    TO    BE    FUR- 
NISHED, FILED  AND  RECORDED. 

SECTION  12.  (a)  Any  and  all  person  or  persons  who  shall  offer 
for  probate  any  will  or  codicil,  or  who  shall  offer  any  other  writ- 
ten or  printed  instrument  to  be  recorded  in  any  register's  office 
in  this  commonwealth,  or  to  be  filed  in  said  office  as  required  by 
law,  which  will,  codicil  or  instrument  shall  be  in  any  other  than 
the  English  language,  shall  furnish  at  his,  her  or  their  expense, 
to  the  register,  a  sworn  translation  in  English  of  such  instrument, 
and  the  register  shall  attach  or  cause  to  be  attached  such  trans- 
lation to  the  original,  and  file  both  the  original  and  the  translation 
of  record  in  his  office,  in  all  cases  where  filing  is  now  or  hereafter 
may  be  required  by  law ;  but  in  all  cases  where  recording  is  now 


REGISTER  OF  WILLS  ACT— SECTIONS  12  (a),  (6)-i3         183 

or  hereafter  may  be  required,  both  the  original  and  the  translation 
in  English  shall  be  recorded. 

NOTE. — This  is  founded  on  Section  i  of  the  Act  of  May  31,  1893,  P.  L. 
188,  4  Purd.  4053,  which  act  includes  also  deeds,  mortgages,  and  other 
instruments  to  be  recorded  in  any  recorder's  office  or  filed  in  any  court 
of  record. 

There  is  a  similar  local  act  in  Berks  County  (Act  of  February  27,  1872, 
P.  L.  173)  relating  to  wills. 

272.  EFFECT  OF  FAILURE  TO  FURNISH  TRANSLA- 

TION. 

(&)  The  register  of  wills  shall  not  file  or  mark  filed,  record 
or  mark  recorded,  any  written  or  printed  instrument  in  violation 
of  this  section,  nor  shall  any  paper  filed  or  recorded  in  violation 
of  this  section  be  notice  to  any  person  in  any  legal  proceeding 
whatever,  nor  be  received  or  considered  in  evidence  in  any  pro- 
ceeding at  law,  in  equity  or  in  the  orphans'  court. 

NOTE. — This  is  founded  on  Section  2  of  the  Act  of  May  31,  1893. 

273.  RECORDING    INVENTORIES    AND    APPRAISE- 

MENTS. 

SECTION  13.  It  shall  be  the  duty  of  the  registers  of  wills  of 
the  several  counties  of  this  commonwealth  to  record  all  inven- 
tories and  appraisements  of  the  estate  of  any  decedent,  filed 
in  the  office  of  the  register  of  wills  by  the  executor  or  admin- 
istrator of  any  such  decedent's  estate,  in  a  book  to  be  provided 
for  that  purpose;  and  the  same  shall  be  indexed  by  such  reg- 
ister of  wills,  in  an  index  book  provided  for  that  purpose;  and 
true  and  attested  copies  or  exemplifications  of  all  such  inven- 
tories and  appraisements,  so  enrolled,  certified  under  the  hand 
and  seal  of  such  register  of  wills,  shall  be  allowed  in  all  courts, 
when  produced,  and  are  hereby  declared  and  enacted  to  be  as 
good  evidence  and  as  valid  and  effectual  in  law  as  the  original 
inventory  and  appraisement  themselves ;  and  the  said  register  of 
wills  shall  be  allowed,  for  performing  such  duties,  the  same  fees 
as  are  now  allowed  by  law  to  such  officers  for  performing  similar 
services. 

NOTE,— This  is  Section  i  of  the  Act  of  June  24,  1885,  P.  L.  155,  i  Purd. 
1092. 

Section  4  of  the  Act  of  April  19,  1856,  P.  L.  459,  4  Purd.  4080,  provides : 
"It  shall  be  the  duty  of  every  register  of  wills  to  keep  a  minute-book, 
duly  indexed,  in  which  shall  be  entered  minutes,  showing  what  papers 


184  REGISTER  OF  WILLS  ACT— SECTIONS  13-14-15 

have  been  filed  in  his  office,  and  also  what  collateral  inheritance  taxes 
have  been  paid,  and  on  what  estates." 

Section  5  of  the  same  act  imposes  the  same  duties  on  the  register  of 
Philadelphia  County,  but  adds  that  he  shall  "receive  therefor  ten  cents 
for  making  said  entry  of  each  paper,  and  each  item  of  property  briefly 
described;  and  for  certificates  thereof,  the  same  fees  as  for  recording 
done  in  his  office,  besides  thirty-seven  and  a  half  cents  for  the  seal.-" 

The  repeal  of  these  sections  is  recommended  as  obsolete  and  unneces- 
sary. 

274.  CERTIFIED  COPIES  OF  BONDS,  INVENTORIES, 

ACCOUNTS,   ETC.,   TO    BE   FURNISHED   BY 
REGISTER. 

SECTION  14.  It  shall  be  the  duty  of  every  register  to  make  and 
certify,  under  the  seal  of  his  office,  true  copies  of  all  bonds,  in- 
ventories, accounts,  actings  and  proceedings  whatsoever,  remain- 
ing in  his  office,  being  thereunto  required  by  any  person  having 
an  interest  therein,  and  to  deliver  the  same,  within  a  reasonable 
time,  to  such  person  applying  therefor,  on  receiving  the  fee 
allowed  to  him  by  law  for  such  copy  or  copies ;  and  if  any  register 
shall  refuse,  after  the  tender  of  his  lawful  fees,  to  make  or  de- 
liver such  copy  or  copies  as  aforesaid,  the  orphans'  court  of  the 
county  may,  on  petition  filed  by  the  person  so  applying  to  the 
register,  make  and  enforce  such  order  upon  said  register  as  may 
be  necessary  to  enforce  his  duty  as  aforesaid. 

NOTE.— This  is  Section  32  of  the  Act  of  March  15,  1832,  4  Purd.  4079, 
which  was  Section  39  of  the  Commissioners'  Draft  and  was  "framed  with 
a  view  to  some  provisions  in  the  Act  27th  March,  1713,  Section  16  (i  Sm. 
L.  81)  and  also  in  the  statutes  21  H.  8,  c.  5,  Section  5."  In  the  present 
draft,  the  words  at  the  end,  beginning  "the  orphans'  court,"  have  been 
substituted  for  "he  shall  be  deemed  guilty  of  a  misdemeanor  in  office." 
The  remedy  suggested  seems  more  appropriate  than  an  indictment  or 
impeachment,  and  in  the  sec  ion  as  it  now  stands  no  penalty  is  provided 
for  the  misdemeanor. 

275.  FILING  COPIES  OF  WILLS  AND  PROBATES  IN 

OTHER  COUNTIES. 

SECTION  15.  In  any  case  in  which  a  last  will  or  testamentary 
paper  shall  have  been  duly  proved  before  the  register  of  wills 
for  any  county  of  this  commonwealth,  and  shall  relate  to  real 
estate  in  any  county  thereof,  it  shall  be  lawful  to  take  from  the 
office  of  such  register  a  copy  of  said  will  or  paper  and  of  the 
probate  thereof,  duly  certified  by  such  register,  under  his  seal  of 
office,  to  be  a  full  and  perfect  copy  of  the  same,  and  to  file  the 


REGISTER  OF  WILLS  ACT— SECTIONS  15-16  (a)  185 

said  copy  in  the  office  of  the  register  of  wills  in  any  county  in 
which  any  of  the  real  estate  owned  by  the  testator  may  be,  which 
said  register  shall  forthwith  record  the  said  copy.  And  the  record 
of  such  copy  shall  be,  and  is  hereby  declared  to  be,  as  valid  and 
effectual  in  law  as  the  original  will  or  paper  after  probate,  or  its 
duly  certified  copy,  or  its  record  would  be  for  all  purposes  of 
vesting  title,  of  evidence  and  of  notice. 

Like  proceedings  may  be  had  at  the  instance  of  any  party  in- 
terested to  obtain  the  certification  of  all  subsequent  proceedings 
appearing  in  the  records  of  the  register  of  wills  concerning  such 
probate. 

NOTE.— This  is  Section  i  of  the  Act  of  April  23,  1889,  P.  L.  48,  i  Purd. 
1073,  altered  by  omitting,  after  "thereof"  in  line  4,  the  following  words : 
"and  the  probate  of  this  will  has  become  conclusive  respecting  real  estate, 
either  by  lapse  of  time  or  by  judgment  of  the  proper  court  having  juris- 
diction." The  reason  for  prohibiting  the  filing  of  copies  in  other  counties 
during  this  period  is  removed  by  the  addition  of  the  last  paragraph. 

The  word  "copy"  has  been  substituted  for  "exemplification,"  since  a 
copy  certified  by  the  register  is  all  that  the  section  requires,  and  an  ex- 
emplified copy  is  ordinarily  understood  to  be  one  authenticated  in  ac- 
cordance with  the  Acts  of  Congress. 

276.     EFFECT  OF  PROBATE,— CONCLUSIVENESS. 

SECTION  16.  (a)  The  probate  or  refusal  of  probate  by  the  reg- 
ister of  the  proper  county  of  any  will,  or  any  other  paper  pur- 
porting to  be  a  will  or  codicil  thereto,  shall  be  conclusive  as  to 
all  property,  real  or  personal,  devised  or  bequeathed  by  such  will 
or  codicil  or  other  paper,  unless,  within  two  years  from  the  date 
of  such  probate  or  refusal  of  probate,  those  interested  shall  ap- 
peal from  the  decree  of  the  register  as  herein  provided :  Provided, 
That  all  persons  who  would  be  sooner  barred  by  this  section 
taking  immediate  effect  shall  not  be  thereby  barred  before  two 
years  from  the  date  hereof. 

NOTE. — This  is  founded  on  Section  i  of  the  Act  of  June  25,  1895,  P.  L. 
305,  i  Purd.  1072,  which  amended  Section  7  of  the  Act  of  April  22,  1856, 
P-  L.  533,  by  reducing  the  period  from  five  years  to  three. 

The  Act  of  1895  reads  as  follows : — 

"The  probate  or  the  refusal  of  probate  by  the  register  of  the  proper 
county  of  any  will,  or  any  other  paper  purporting  to  be  a  will  or  codicil 
thereto,  devising  real  estate,  shall  be  conclusive  as  to  such  realty  unless, 
within  three  years  from  the  date  of  such  probate  or  refusal  of  probate, 
those  interested  to  controvert  or  sustain  it  shall,  by  caveat  and  action 
at  law  duly  pursued,  contest  the  validity  of  such  will  as  to  such 
realty  or  claim  thereunder  by  such  action  duly  prosecuted  to  final  judg- 


i86        REGISTER  OF  WILLS  ACT— SECTIONS  16  (a),  (b)-ij 

ment  in  favor  of  the  plaintiff  therein :  Provided,  That  all  persons  who 
would  be  sooner  barred  by  this  section  taking  immediate  effect  shall  not 
be  thereby  barred  before  two  years  from  the  date  hereof." 

In  Wilson  v.  Gaston,  92  Pa.  207,  the  language  of  the  Act  of  1856  was 
criticised  adversely,  and  it  was  held  that  the  "action  at  law"  referred  to 
was  an  issue  d.  v.  n.,  and  an  action  of  ejectment  did  not  lie  to  contest  the 
probate  of  a  will.  The  word  "caveat"  is  also  inappropriate,  since  a  caveat 
necessarily  precedes  "the  probate  or  refusal  of  probate."  In  Wall  v. 
Wall,  123  Pa.  545,  it  was  held  that  the  probate  of  a  will  might  be  col- 
laterally attacked  in  ejectment  where  it  appeared  on  the  face  of  the  pro- 
ceedings that  the  register  was  without  jurisdiction  because  the  will  was 
not  signed  at  the  end  by  the  decedent.  The  ground  of  this  decision  was 
not  the  language  of  the  Act  of  1856,  but  the  general  rule  that  any  judg- 
ment may  be  collaterally  attacked  for  want  of  jurisdiction. 

In  the  present  draft,  the  section  is  made  to  apply  to  personal  as  well 
as  real  estate,  the  period  is  reduced  from  three  years  to  two,  and  the 
words  "appeal  from  the  decree  of  the  register  as  herein  provided,"  are 
substituted  for  the  provision  as  to  "caveat  and  action  at  law." 

The  latter  change  is  in  accordance  with  the  opinion  in  Wilson  v.  Gaston, 
supra,  and  does  not  interfere  with  the  principle  announced  in  Wall  v. 
Wall,  supra. 

Cited  in  Burtop's  Est,  66  P.  L.  J.  765. 

277.  WHEN  NO  PROBATE  WITHIN  THREE  YEARS; 

EFFECT    AS    TO    CONVEYANCE    OF    REAL 
ESTATE. 

(fc)  The  last  will  of  any  decedent  may  be  offered  for  probate 
at  any  time:  Provided,  That  if  such  will  shall  not  have  been 
offered  for  probate  within  three  years  from  the  date  of  the  death 
of  the  testator,  the  same  shall  be  void  and  of  no  effect  against  a 
bona  fide  conveyance  or  mortgage  of  the  real  estate  of  said  de- 
cedent, duly  recorded  before  the  date  of  the  offering  of  said  will 
for  probate. 

NOTE. — The  proviso  is  founded  on  Section  i  of  the  Act  of  April  I,  1909, 
P-  L.  79,  5  Purd.  5884;  the  first  part  is  new,  but  declaratory  of  the  present 
law. 

278.  PRECEPT  BY  REGISTER  TO  COMMON  PLEAS 

FOR  ISSUE  d.  v.  n. 

SECTION  17.  Whenever  a  caveat  shall  be  entered  against  the 
admission  of  any  testamentary  writing  to  probate,  and  the  person 
entering  the  same  shall  allege  as  the  ground  thereof  any  matter 
of  fact  touching  the  validity  of  such  writing,  it  shall  be  lawful  for 
the  register,  at  the  request  of  any  person  interested,  to  issue  a 


REGISTER  OF  WILLS  ACT— SECTION  17  187 

precept  to  the  court  of  common  pleas  of  the  respective  county, 
directing  an  issue  to  be  formed  upon  the  said  fact  or  facts,  and 
also  upon  such  others  as  may  be  lawfully  objected  to  the  said 
writing,  in  substantially  the  following  form,  viz : — 

(L.  S.)  County,    ss.    The 

Commonwealth  of  Pennsylvania:  To  the  judges  of  the  court  of 
common  pleas  of  the  said  county,  greeting:  Whereas,  A.  B.,  on 
the  day  of  , 

in  the  year,  etc.,  presented  to  G.  H.,  our  register  of  wills  of  said 
county,  for  probate,  a  certain  writing  hereto  annexed,  purporting 
to  have  been  made  the  day  of  , 

in  the  year,  etc.  (or  otherwise  describing  the  paper  in  question), 
which  said  writing  the  said  A.  B.  avers  is  the  last  will  and  testa- 
ment of  the  said  C.  D.,  and  whereas  E.  D.,  who  is  a  son  and  heir 
of  the  said  C.  D.  (or  intermarried  with  F.  D.,  who  is  a  daughter 
and  heir,  etc.,  according  to  the  fact),  hath  objected  before  our 
said  register  that  the  said  writing  was  procured  by  duress  and 
constraint  (stating  the  matters  of  fact  objected),  and  whereas 
the  said  A.  B.  (or  E.  D.)  hath  requested  that  an  issue  may  be 
directed  into  our  said  court  to  try  by  a  jury  the  validity  of  the 
said  writing,  and  the  matters  of  fact  which  may  be  objected  there- 
to in  our  said  court ;  therefore,  we  command  you  that  you  cause 
an  action  to  be  entered  upon  the  records  of  our  said  court,  as  of 
the  day  of  the  delivery  of  this  our  precept  into  the  office  of  the 
prothonotary  of  our  said  court,  between  the  said  A.  B.  and 
the  said  E.  D.,  so  that  an  issue  therein  may  be  formed  upon  the 
merits  of  the  controversy  between  the  said  parties,  and  tried 
in  due  course  according  to  the  practice  of  our  said  courts  in 
actions  commenced  by  writ ;  and  further,  that  you  cause  all  other 
persons  who  may  be  interested  in  the  estate  of  the  said  C.  D.,  as 
heirs,  relations  or  next  of  kin,  devisees,  legatees  or  executors,  to 
be  warned,  so  that  they  may  come  into  our  said  court  and  become 
party  to  the  said  action,  if  they  shall  see  cause,  and  that  you  cer- 
tify the  result  of  the  trial  so  had  in  the  premises  into  the  office 
of  our  said  register. 

Attest.    G.  H.,  Register  of  Wills  of  the  said  county. 

And  the  facts  established  by  the  trial  had  and  certified  to  the 
register  as  aforesaid,  shall  not  be  re-examined  by  the  said  reg- 
ister, nor  upon  any  appeal  from  his  decision. 

NOTE. — This  is  Section  13  of  the  Act  of  March  15,  1832,  i  Purd.  1070, 
which  was  founded  in  part  on  Section  18  of  the  Act  of  April  13,  1791, 
3  Sm.  L.  28. 


i88  REGISTER  OF  WILLS  ACT— SECTIONS  17-18 

In  line  10  the  word  "substantially"  has  been  inserted.  Section  43  of 
the  Act  of  1832,  I  Purd.  1072,  reads:  "No  immaterial  variation  from  the 
forms  given  and  prescribed  in  and  by  this  act,  shall  vitiate  or  render  void 
any  proceedings  in  which  said  forms  shall  be  used."  The  form  in  the 
present  section  is  the  only  one  included  in  this  draft,  and  it  therefore 
seems  unnecessary  to  re-enact  Section  43,  the  word  "substantially"  being 
intended  to  have  the  same  effect. 

279.  CERTIFICATION  OF  RECORD  TO  ORPHANS' 
COURT  ON  ORDER  OF  COURT. 

SECTION  1 8.  Where  a  caveat  is  entered  against  the  probate  of 
any  last  will  or  testamentary  paper,  or  where  there  is  a  dispute  as 
to  such  probate  or  as  to  the  granting  of  letters  testamentary  or  of 
administration,  the  orphans'  court  of  the  county  in  which  said 
will  or  testamentary  paper  has  been  offered  for  probate  or  said 
letters  testamentary  or  of  administration  have  been  applied  for, 
may,  by  general  rule  or  by  special  order  in  the  case,  on  the  petition 
of  the  register  of  wills  of  said  county  or  of  any  party  interested, 
direct  said  register  to  certify  the  entire  record  thereto  pertaining 
to  said  court,  which  shall  then  determine  whether  the  will  or  testa- 
mentary paper  shall  be  admitted  to  probate  or  an  issue  devisavit 
vel  non  be  directed  to  the  court  of  common  pleas  of  said  county, 
or  whether  said  letters  testamentary  or  of  administration  shall  be 
granted,  in  like  manner  as  if  the  said  will  or  testamentary  paper 
had  been  admitted  to  probate,  or  said  letters  testamentary  or  of 
administration  had  been  granted,  by  said  register  and  an  appeal 
been  taken  to  the  orphans'  court  from  his  decree.  The  record 
may  be  thus  certified  at  any  stage  of  the  proceedings  before  the 
register,  and  after  its  removal  to  the  orphans'  court  no  letters  of 
administration  pendente  lite  shall  be  granted  by  the  register  except 
by  leave  of  the  orphans'  court  on  cause  shown  by  any  party  in- 
terested. 

NOTE. — This  is  a  new  section,  intended  to  prevent  the  needless  and 
sometimes  intentional  delays  which  have  often  occurred  in  the  prosecution 
of  proceedings  before  registers. 

Where  a  petition  was  presented  under  this  section  alleging  testamentary 
incapacity  and  undue  influence  and  an  answer  was  filed  denying  the  same 
and  no  testimony  was  taken,  the  Court,  in  refusing  the  petition,  held, 
per  Cummings,  P.  J. : 

"From  our  examination  of  the  section  we  are  satisfied  that  the  question 
of  certifying  the  record  is  discretionary.  The  only  question,  therefore, 
for  our  decision,  is,  whether  the  court  upon  the  presentation  of  a 
petition  alleging  undue  influence  and  incapacity  or  unsoundness  of  mind, 


REGISTER  OF  WILLS  ACT— SECTION  18  189 

which  allegations  are  denied  in  answer,  should  certify  the  record,  or 
whether  the  court  under  such  circumstances  should  direct  that  the 
usual  proceedings  be  had  before  the  Register  of  Wills. 

"After  careful  consideration  and  much  thought  we  have  decided  that 
we  will  not  exercise  such  discretion  in  favor  of  the  petitioner  for  the 
reason  should  we  do  so  we  would  be  practically  making  a  register's  court 
out  of  the  orphans'  court.  Under  such  circumstances  as  these,  if  we 
should  so  decide,  any  person  might  by  the  mere  presentatiqn  of  a  petition 
upon  mere  allegation  of  want  of  capacity  or  undue  influence,  remove  any 
proceeding  from  the  register  into  the  orphans'  court.  We  are  unable  to 
see  any  reason  whatever,  from  our  examination  of  the  record,  why  this 
proceeding  should  be  removed. 

"We  are  satisfied  that  the  same  will  not  be  delayed  if  proceeded  with  in 
the  regular  way  before  the  register,  and  in  the  event  of  any  delay  we  are 
quite  well  satisfied  that  the  register  would  ask  that  the  same  be  certified." 
Fonda's  Estate,  5  Northumberland  249. 

Where  the  entire  record  pertaining  to  the  application  of  letters,  a 
caveat  having  been  filed,  was  certified  by  the  Register  of  Wills  to  the 
orphans'  court  under  this  section  of  the  act,  the  matter  in  controversy 
being  the  legitimacy  of  an  alleged  son  and  heir  of  the  decedent,  and  in 
this  proceeding  a  petition  was  presented  by  the  said  alleged  son  under 
Section  18  of  the  Register  of  Wills  Act  asking  that  an  issue  d.  v.  n.  be 
directed,  the  court  held  that  the  disputed  fact  was  not  material  or  essen- 
tial to  the  determination  of  the  question  of  the  grant  of  letters  of 
administration  and  refused  to  grant  the  issue.  Wand's  Est,  50  Pa. 
C.  C.  516. 

When  an  order  by  the  orphans'  court  upon  the  Register  of  Wills  to 
certify  the  entire  record  of  a  proceeding  before  him,  in  accordance  with 
Section  18  of  the  Act  of  June  7,  1917,  P.  L.  415,  is  lodged  with  him,  his 
jurisdiction  over  the  matter  ends,  and  letters  of  administration  pendente 
lite  granted  pursuant  to  an  appointment  made  by  him  before  service  of 
the  order  are  void  and  will  be  vacated.  After  service  of  the  order  the 
register  may  not  act  in  the  matter  except  by  leave  of  court. 

The  register's  appointment  of  a  person  as  administrator  pendente  lite 
is  not  the  equivalent  of  a  grant  of  letters,  and,  hence,  cannot  be  perfected 
by  granting  letters  after  service  of  the  order. 

When  the  provisions  of  Section  18  of  the  act  are  invoked,  an  appeal 
from  the  register  does  not  lie,  as  the  certification  of  the  record  and  the 
disposition  of  disputed  or  controverted  matters  by  the  court  de  novo  is 
a  substitute  for  an  appeal. 

"Jurisdiction  is  in  the  register  to  grant  letters  of  administration  gen- 
erally, including  letters  pendente  lite  under  special  circumstances,  and  the 
proceeding  is  well  defined. 

Section  4  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  provides 
that  the  register  'may,  when  the  circumstances  of  the  case  require,  grant 
to  any  fit  person  or  persons  letters  *  *  *  pendente  lite,  security  to  be 
entered  as  in  other  cases  of  administration.'  But  Section  7,  par.  a,  of 
said  act,  provides  that  before  the  register  issue  letters  he  shall  administer 
an  oath  in  the  prescribed  form.  Section  8,  par.  a,  provides  that  upon  his 


REGISTER  OF  WILLS  ACT— SECTION  18 

grant  of  letters  he  shall  take  a  bond  as  there  required.  If  he  grant  such 
letters  (par.  d  of  said  section)  without  these  prerequisites,  'such  letters 
shall  be  void.'  Letters  are  not  to  issue  unless  bond  has  been  previously 
given :  Moore  v.  Rahm,  2  S.  &  R.  375-  In  such  a  case,  by  the  very  terms 
of  the  law  the  letters  are  void:  Bradley  v.  The  Com.,  31  Pa.  522.  Failure 
to  take  the  oath  at  the  time  may  not  per  se  void  the  grant  of  Letters, 
but  failure  to  give  the  bond  has  a  very  different  effect :  Beeber's  Appeal, 
99  Pa.  596.  The  register  having  made  his  selection  (Hawkin's  Orphans' 
Court  Practice,  Sec.  28),  the  next  steps  are  the  oath  and  the  bond,  'and 
thereupon  the  issue  of  the  letters.' 

"The  register's  appointment  as  of  October  19  was  not  a  grant  of 
letters;  it  had  no  status  as  such  by  law  or  in  practice.  Before  the 
register  granted  letters  in  compliance  with  the  act,  he  was  directed  to 
certify  the  entire  record  to  this  court,  it  appearing  that  a  caveat  had  been 
entered  and  a  dispute  as  to  the  probate  and  grant  of  letters  existed 
under  Section  18  of  the  Register  of  Wills  Act  of  1917.  This  order  was 
mandatory.  From  the  moment  of  delivery,  to  the  register  his  hand  was 
stayed.  He  was  directed  to  certify  what  had  then  been  done.  The 
attempted  grant  of  letters  on  the  2oth  was,  in  the  face  of  the  order  of 
the  iQth,  an  illegal  exercise  of  power  over  a  matter  no  longer  in  his 
jurisdiction;  for  it  is  in  this  tribunal  where  from  October  19  the  ques- 
tions will  be  determined  whether  the  will  shall  be  probated  or  an  issue 
awarded,  or  whether  letters  pendente  lite  shall  be  granted.  From  this 
tribunal  alone,  after  the  date  of  delivery  of  the  mandatory  order,  may  the 
register  have  leave  to  grant  letters  of  administration  pendente  lite. 

"It  is  strongly  urged  that  only  by  appeal  has  this  court  jurisdiction  of 
the  matters  in  dispute.  Such  was  the  law  touching  all  acts  of  the  register 
excepted  to  prior  to  Section  18  of  the  Act  of  1917. 

"This  provision  is  new,  and,  say  the  commissioners,  'is  intended  to 
prevent  the  needless  and  sometimes  intentional  delays  which  have  often 
occurred  in  the  prosecution  of  proceedings  before  the  registers.'  This 
section,  after  providing  that  the  orphans'  court  may  direct  the  certification 
of  the  entire  record,  prescribes  the  course  of  procedure;  this  shall  be 
'in  like  manner  as  if  an  appeal  had  been  taken  from  the  register's  decree.' 

"The  answer,  therefore,  to  the  contention  that  an  appeal  only  can  lie 
is  in  Section  18  itself.  When  its  provisions  are  invoked,  an  appeal  does 
not  lie.  The  certification  of  the  record  and  the  disposition  of  disputes 
or  controverted  matters  by  this  court  de  novo  is  a  substitute  for  an 
appeal.  There  is  in  the  proceeding  a  bar  a  mandatory  order  directing 
the  register  to  certify  an  entire  pending  proceeding.  The  attempted 
exercise  of  power  of  appointment  after  this  order  is  void. 

"As  Section  18  of  the  Register  of  Wills  Act  distinctly  provides  that, 
following  the  certification  of  a  proceeding  and  its  removal  to  the  orphans' 
court,  no  letters  of  administration  pendente  lite  shall  be  granted,  except 
by  leave  of  the  orphans'  court  on  cause  shown  by  any  party  interested, 
application  may  now  be  made  to  this  court  by  any  person  interested, 
with  due  notice  to  all  persons  interested  to  show  cause  why  letters 
pendente  lite  should  be  granted,  and  if  such  cause  be  shown,  the  register 
will  have  leave  to  grant  letters,  after  due  notice  to  all  parties  interested 


REGISTER  OF  WILLS  ACT— SECTIONS  18-19  191 

(Bieber's  Appeal,  n  Pa.  167)  to  some  fit  and  wholly  disinterested  person: 
Warner's  Appeal,  207  Pa.  580."  Henry's  Est.,  30  Dist.  945,  69  P.  L.  J. 
737,  35  York  122. 

280.  CERTIFYING  RECORD  TO  ORPHANS'  COURT, 
WHERE  THERE  ARE  DIFFICULT  OR  DIS- 
PUTABLE QUESTIONS. 

SECTION  19.  Where  objections  are  made,  or  a  caveat  is  entered, 
against  the  probate  of  any  last  will  and  testament,  and  no  precept 
for  an  issue  is  directed  by  the  register  into  the  court  of  common 
pleas  as  aforesaid,  or  where,  objections  are  made  to  the  granting 
of  letters  testamentary  or  of  administration  to  any  person  apply- 
ing therefor,  or  where  any  question  of  kindred  or  other  disputable 
and  difficult  matter  comes  into  controversy  before  any  register, 
he  may  certify  the  entire  record  thereto  pertaining  to  the  orphans' 
court  of  the  county,  for  the  determination  by  said  court  of  such 
disputable  and  difficult  matter,  giving  convenient  notice  of  the 
time  when  the  matter  will  be  heard  in  said  court  to  all  persons 
interested. 

NOTE. — This  is  founded  on  Section  25  of  the  Act  of  March  15,  1832,  4 
Purd.  4081,  which  provided  for  the  appointment  of  a  register's  court  to 
determine  such  matters.  It  has  been  held  that  the  section  was  not  re- 
pealed by  the  abolition  of  registers'  courts  by  the  constitution  of  1874, 
and  that  such  matters  are  now  to  be  certified  to  the  orphans'  court :  Com. 
v.  Clark,  i  W.  N.  C.  330.  The  section  has  been  revised  accordingly. 

The  draft,  instead  of  providing  that  the  register  "shall,  at  the  request 
of  any  person  interested,  certify  the  entire  record,"  etc.,  provides  that  the 
register  may  certify  the  record  and  omits  the  provision  as  to  request  by 
a  person  interested.  The  last  preceding  section  of  the  draft  provides  a 
method  for  the  compulsory  removal  of  the  record,  and  it  seems  best  to 
make  the  certification  under  the  present  section  discretionary  with  the 
register. 

In  the  provision  as  to  notice,  the  words  "by  citation  or  otherwise,"  fol- 
lowing "said  court,"  and  the  words  "and  to  the  judges  of  said  court," 
after  "persons  interested,"  and,  at  the  end,  the  words,  "and  in  the  mean- 
time, he  shall  do  and  receive  all  proper  acts  preparatory  to  the  business 
of  said  court,"  have  been  omitted  as  being  inappropriate  since  the 
abolition  of  the  register's  court. 

A  paper  purporting  to  be  the  will  of  decedent  was  offered  for  probate 
and  it  was  objected  to  for  the  reason  that  it  was  not  legible  and  therefore 
meaningless ;  that  it  was  informal  and  there  was  no  proof  of  its  execution 
with  testamentary  intent ;  that  the  signature  was  not  the  signature  of  the 
decedent.  Held,  that  (under  the  above  section)  there  arose  such  a  dis- 
putable question  of  fact  as  should  be  passed  upon  by  the  jury  and  should  be 


192          REGISTER  OF  WILLS  ACT— SECTIONS  19-20  (a) 

certified  to  the  court  of  common  pleas,  that  an  issue  might  be  framed  to  try 
the  same. 

In  a  proceeding  under  this  section  of  the  act  where  the  register  has  cer- 
tified the  record  to  the  orphans'  court  for  the  determination  of  disputable 
and  difficult  matter,  the  testimony  of  experts  to  aid  the  court  in  reading  an 
alleged  will  may  be  heard  if  the  characters  are  difficult  to  be  deciphered  or 
the  language,  whether  technical  or  local  or  provincial  or  altogether  foreign, 
is  not  understood  by  the  court ;  in  which  case  the  evidence  of  persons  skilled 
in  deciphering  writings,  or  who  understood  the  language  in  which  the 
instrument  is  written,  or  the  technical  or  local  meaning  of  the  terms  which 
are  employed,  is  admissible  to  declare  what  are  the  characters  or  to  trans- 
late the  instrument  or  decipher  the  proper  meaning  of  particular  words. 

Cross'  Est.,  i  Erie  83. 

281.     CAVEATS,— BOND. 

SECTION  20.  (a)  It  shall  not  be  lawful  for  any  register  of  wills, 
having  jurisdiction  of  the  probate  of  wills  and  the  granting  of 
letters  testamentary  and  of  administration  within  this  common- 
wealth, to  entertain,  consider  or  regard  any  caveat  against  the 
probate  of  any  last  will  and  testament,  or  the  granting  of  letters 
testamentary  or  of  administration,  or  any  appeal  from  the  probate 
of  any  such  will,  or  from  the  grant  of  any  letters  testamentary 
or  of  administration,  unless  such  caveator  or  caveators,  appellant 
or  appellants,  shall,  within  ten  days  after  the  filing  of  such  caveat 
or  appeal,  enter  into  a  bond,  in  the  name  of  the  commonwealth 
of  Pennsylvania,  with  at  least  two  sufficient  sureties  to  be  ap- 
proved by  the  register,  in  a  penal  sum  of  not  less  than  five  hun- 
dred dollars  and  not  to  exceed  five  thousand  dollars,  as  may  be 
determined  by  the  said  register,  conditioned  for  the  payment  of  all 
or  any  costs  which  may  be  occasioned  by  reason  of  such  caveat  or 
appeal,  and  which  may  be  decreed  by  such  register  or  by  the 
orphans'  court  to  be  paid  by  such  caveator  or  appellant,  which 
bond  shall  remain  on  file  in  the  office  of  such  register. 

NOTE.— This  is  Section  i  of  the  Act  of  June  6,  1887,  P.  L.  359,  4  Purd. 
4086. 

See  forms  3,  51-2. 

The  fixing  of  the  amount  of  the  bond  to  be  filed  by  an  appellant  to  the 
orphans'  court  from  the  decision  of  the  register  of  wills  admitting  a  will 
to  probate,  is  the  exercise  of  a  judicial  power,  and  on  appeal  to  the 
orphans'  court  from  the  order  of  the  register  fixing  the  amount  of  such 
bond,  the  court  is  confined  to  a  review  of  the  discretion  exercised  by  the 
register;  and  where  this  discretion  has  not  been  judiciously  exercised, 
the  register  will  be  reversed.  Alexander's  Est.,  28  Dist.  993t  33  York  I. 


REGISTER  OF  WILLS  ACT— SECTION  20  (b),  (c),  (d)        193 

282.  FAILURE  TO  GIVE  BOND. 

(&)  In  case  no  bond,  such  as  aforesaid,  shall  be  filed  with  the 
register  within  ten  days  after  the  filing  of  any  caveat  or  appeal, 
as  aforesaid,  such  caveat  or  appeal  shall  be  considered  as  aban- 
doned, and  shall  be  dismissed,  and  proceedings  may  be  had  in  all 
respects  as  if  no  such  caveat  or  appeal  had  been  filed. 

NOTE.— This  is  Section  2  of  the  Act  of  June  6,  1887  (P.  L.  359),  4  Purd. 
4087,  the  only  change  being  to  substitute  "respects"  for  "cases"  in  the  next 
to  the  last  line. 

283.  COSTS  ON  CAVEAT  OR  APPEAL. 

(c)  Such  registers  of  wills  and  the  orphans'  court  of   the 
proper  county,  in  all  cases  of  appeal  from  the  decree  of  the  reg- 
ister, shall  have  power,  and  they  are  hereby  directed,  in  all  cases 
which  may  be  instituted  or  adjudicated  before  them  or  any  of 
them,  and  in  all  proceedings  which  may  be  had  upon  or  by  reason 
of  any  such  caveat  or  appeal,  to  determine  what  amount  of  costs 
has  been  incurred  or  occasioned  by  the  proceeding,  and  to  direct 
by  whom  such  costs  shall  be  paid;    and  when  such  costs  or  any 
part  thereof  shall  be  finally  adjudged  and  decreed  to  be  paid  by 
any  caveator  or  appellant,  as  aforesaid,  any  party  to  whom  such 
costs  are  due  and  payable,  or  who  may  have  advanced  money  to 
pay  the  same  as  the  proceedings  shall  have  progressed,  may  insti- 
tute an  action  in  the  proper  court  upon  such  bond  for  his  own 
benefit,  or  that  of  all  other  parties  interested,  and  may  proceed 
thereon  to  final  judgment  and  execution,  if  the  same  shall  be  nec- 
essary, as  in  other  cases. 

NOTE. — This  is  Section  3  of  the  Act  of  June  6,  1887,  4  Purd.  4087,  modi- 
fied by  changing  the  word  "direct"  to  "determine"  in  line  7,  and  by  omit- 
ting after  that  word,  "in  the  final  order  or  judgment  he  or  they  shall  make 
in  each  case." 

284.  APPEALS   FROM   ORDERS   AS   TO   SECURITY 

AND  TAXATION  OF  COSTS. 

(d)  All  the  orders  and  decrees  of  the  said  register  of  wills  re- 
lating to  the  amount  and  sufficiency  of  the  security  to  be  required 
by  this  section  and  to  the  taxation  of  costs  in  proceedings  upon 
caveats  and  appeals  before  him,  as  aforesaid,  shall  be  subject  to 
the  right  of  appeal  to  the  orphans'  court  of  the  proper  county  by 
or  on  behalf  of  any  and  every  person,  who  may  appear  or  have 
appeared  before  him  as  litigants,  or  who  may  be  affected  by  such 
order  or  decree. 

13 


194        REGISTER  OF  WILLS  ACT— SECTIONS  20  (d)-2i  (o) 

NOTE.— This  is  Section  4  of  the  Act  of  June  6,  1887,  4  Purd.  4087,  ex- 
cept that,  in  line  3,  "section"  is  substituted  for  "act,"  and  "taxation"  for 
"disposition,"  and,  at  the  end,  "or  decree"  is  substituted  for  "of  appeal," 
the  latter  words  having  apparently  been  used  in  the  Act  of  1887  by  mis- 
take. 

Although  under  Section  20,  sub-division  (o)  and  (d)  of  the  Register 
of  Wills  Act  of  June  7,  1917,  P.  L.  415,  the  orphans'  court  is  confined  to 
a  review  of  the  discretion  exercised  by  the  register  of  wills  in  fixing  the 
amount  of  security  to  effect  an  appeal  from  his  decision  admitting  a  will 
to  probate,  the  court  will  review  the  action  of  the  register  and  reduce  the 
amount  of  the  bond  where  his  discretion  has  not  been  judiciously 
exercised.  Alexander's  Est.,  28  Dist.  993,  33  York  I. 

285.  APPEALS  TO  ORPHANS'  COURT,  — PERIOD 
FOR  APPEAL. 

SECTION  21.  (a)  From  all  the  judicial  acts  and  proceedings  of 
the  several  registers,  including  all  decisions  granting  an  issue 
devisavit  vel  non  in  a  contest  concerning  the  validity  of  a  will, 
appeals  may  be  taken  to  the  orphans'  court  of  the  respective 
county  within  the  term  of  two  years:  Provided,  That  any  party 
entitled  to  appeal  may  be  cited  by  such  court  to  show  cause  why 
he  should  not  appeal  within  six  months  from  the  date  of  such  cita- 
tion, and,  on  the  failure  of  such  party  to  show  cause,  said  court 
may  make  an  order  limiting  the  time  for  such  appeal  by  said  party 
to  said  period  of  six  months. 

NOTE. — This  is  founded  on  Section  31  of  the  Act  of  March  15,  1832, 
4  Purd.  4082,  which  was  derived  from  Section  2  of  the  Act  of  September 
30,  1791,  3  Sm.  L.  58. 

It  is  now  modified  as  follows:  The  provision  of  the  Act  of  February 
28,  1905,  P.  L.  26,  6  Purd.  7298,  allowing  an  appeal  from  the  granting  by 
the  register  of  an  issue  devisavit  vel  non,  is  incorporated;  the  reference 
to  a  register's  court  is  omitted;  the  period  for  appeal  is  reduced  from 
three  years  to  two ;  and  the  proviso  is  added  to  cover  cases  where  parties 
entitled  to  appeal  delay  unreasonably  in  doing  so. 

See  form  73. 

A  register  of  wills,  having  admitted  a  will  to  probate  and  granted  letters 
testamentary  thereon,  is  without  jurisdiction,  upon  the  presentation  of  an 
alleged  later  will,  to  revoke  said  letters.  A  register  of  wills  may  revoke 
letters  of  administration  improvidently  granted  but  not  letters  testamen- 
tary. The  orphans'  court  is  without  jurisdiction  to  review  a  register's 
decree  admitting  a  will  to  probate  except  on  appeal  as  provided  by  the  Act 
of  June  7,  1917,  Section  21,  P.  L.  415.  Burtop's  Estate,  66  P.  L.  J.  765. 

Only  the  register  of  the  county  where  decedent  resided  should  grant 
letters  on  his  estate. 


REGISTER  OF  WILLS  ACT— SECTIONS  21  (a),   (&)-22        195 

A  register  from  another  county  in  such  case  may  appeal  from  the  decree 
of  the  register  granting  the  letters. 

In  so  holding,  Gummey,  J.,  said,  inter  alia:  "When  we  examine  the  act 
which  gives  a  right  of  appeal  (Section  21  of  the  Register  of  Wills  Act 
of  1917),  we  find  that  there  are  no  restrictions  as  to  the  parties  entitled 
to  exercise  that  right.  Of  course  the  appeal  must  be  taken  by  a  party  in 
interest:  See  Curtis's  Estate,  253  Pa.  389.  *  *  * 

"That  the  Register  of  Wills  of  Delaware  County  has  a  pecuniary  in- 
terest in  the  controversy  must  be  conceded,  as  in  the  event  of  the  will 
being  probated  in  his  county,  he  would  be  entitled  to  receive  not  only  the 
fees  which  accrue  to  him  by  the  act  of  probate,  but  also  the  compensation 
allowed  him  as  the  agent  of  the  commonwealth  for  the  collection  of  the 
collateral  inheritance  tax  to  which  this  estate  is  subject;  but,  passing  this, 
it  seems  to  me  that  the  register  of  wills  of  every  county  is  charged  with 
the  duty  of  seeing  that  the  laws  relating  to  his  office  are  enforced  and 
obeyed;  for  if  the  register  of  wills,  in  a  matter  of  this  kind,  has  not  a 
right  of  appeal,  who  would  have  that  right,  if  all  of  the  beneficiaries 
under  a  will,  with  an  intention  to  evade  the  law,  probated  a  will  in  a 
county  other  than  the  one  designated  by  the  Register  of  Wills  Act?  It 
is  one  of  the  protections  given  to  creditors  that  the  provisions  of  the  act 
shall  be  strictly  followed.  Creditors  are  charged  with  knowledge  of  the 
law,  and,  knowing  the  law,  they  would  naturally  look  for  the  probate  of 
a  testator's  will  in  the  county  which  the  law  designated  as  the  proper 
county  for  that  purpose ;  but  if  the  view  here  contended  for  should  be 
sustained,  it  would  not  be  difficult  for  an  executor,  by  collusion  with  the 
beneficiaries,  to  probate  in  Allegheny  County,  or  in  any  other  county  to 
which  a  passing  fancy  might  lead  them,  a  will  required  by  law  to  be  pro- 
bated in  Philadelphia  County.  *  *  *  The  appeal  is  sustained."  Cook's 
Est.,  47  Pa.  C.  C.  84,  27  Dist.  1006.  See,  also,  Winsor's  Est.,  47  Pa.  C.  C. 
105,  27  Dist.  1010,  32  York  131;  affirmed  in  264  Pa.  552,  107  Atl.  888. 

286.  EFFECT  OF  APPEAL. 

(&)  No  appeal  from  any  decree  of  the  register,  concerning 
the  validity  of  a  will  or  the  right  to  administer,  shall  suspend  the 
powers  or  prejudice  the  acts  of  any  executor  or  administrator  to 
whom  letters  have  been  granted. 

NOTE. — This  is  founded  on  a  part  of  Section  42  of  the  Act  of  March  15, 
1832,  4  Purd.  4092,  which  relates  to  appeals  from  the  register's  (orphans') 
court,  and  is  considered  in  the  draft  of  the  new  Orphans'  Court  Act. 

287.  BILL  OF  COSTS. 

SECTION  22.  In  counties  wherein  separate  orphans'  courts  are 
now  or  may  be  established,  the  said  courts  shall  establish  a  bill  of 
costs  to  be  chargeable  to  parties  and  to  estates,  for  the  probate  of 
wills  and  testaments,  and  granting  of  letters  testamentary  and  of 
administration,  and  for  all  the  services  of  the  register  of  wills  of 


196  REGISTER  OF  WILLS  ACT— SECTIONS  22-23-24 

such  county  in  the  transaction  of  the  business  of  his  office:  Pro- 
vided, That  the  tax  to  be  paid  to  and  received  by  the  register  for 
the  use  of  the  commonwealth  shall  not  be  less  than  the  sum  now 
or  hereafter  fixed  by  law :  And  provided  further,  That  in  coun- 
ties wherein  no  separate  orphans'  courts  have  been  or  shall  be 
established,  the  law  as  to  fees  to  be  charged  by  registers  of  wills 
shall  remain  as  heretofore. 

NOTE. — This  is  Section  i  of  the  Act  of  March  24,  1877,  P.  L.  37,  2  Purd. 
1651,  and  4  Purd.  4081. 

The  second  proviso  has  been  added  in  order  to  show  that  it  is  not  the 
intention  of  the  present  draft  to  deal  with  the  subject  of  fees  and  salaries 
of  registers  now  regulated  by  Section  7  of  the  Act  of  April  2,  1868,  P.  L. 
10,  2  Purd.  1650,  Section  37  of  the  Act  of  March  15,  1832,  P.  L.  145,  or 
local  acts. 

The  Commissioners  have  considered  it  best  not  to  attempt  to  include 
this  subject  or  the  subjects  of  the  appointment  of  clerks,  stenographers, 
etc.,  and  their  salaries. 

288.  PROCEDURE  TO  COLLECT  COSTS. 

SECTION  23.  Whenever  any  proceedings  before  a  register  shall 
be  wholly  ended,  and  the  fees  and  costs  accrued  thereon  shall  re- 
main, during  the  space  of  thirty  days  thereafter,  due  and  unpaid, 
such  register  may  file  a  bill  thereof,  under  his  hand  and  the  seal  of 
his  office,  in  the  orphans'  court  of  the  county ;  and  upon  the 
docketing  thereof,  an  execution  may  be  issued  in  the  name  of  the 
commonwealth,  to  levy  the  amount  of  the  said  bill,  in  like  manner 
as  executions  may  issue  out  of  the  orphans'  court  to  enforce  pay- 
ment of  decrees  of  that  court  for  the  payment  of  money. 

NOTE. — This  is  Section  38  of  the  Act  of  March  15,  1832,  4  Purd.  4081, 
which  was  new  in  that  act.  In  the  second  line,  "or  register's  court"  is 
omitted  after  "register." 

In  line  6  "orphans'  court"  is  substituted  for  "common  pleas,"  it  seem- 
ing more  appropriate  that  the  remedy  should  be  in  the  former  court. 

289.  REGISTER  TO    COLLECT   FIFTY   CENTS   FOR 

USE  OF  COMMONWEALTH. 

SECTION  24.  On  the  probate  of  any  will,  and  the  granting  of 
letters  testamentary  thereon,  also  on  the  granting  of  any  letters 
of  administration,  every  register  shall  demand  and  receive  for  the 
use  of  the  commonwealth,  in  each  case,  the  sum  of  one  dollar? 

xAs  changed  from  "fifty  cents"  by  Act  of  April  16,  1921  (P.  L.  94). 


REGISTER  OF  WILLS  ACT— SECTIONS  24-25-26  197 

NOTE. — This  is  Section  36  of  the  Act  of  March  15,  1832,  4  Purd.  4081, 
which  was  stated  by  the  Commissioners  to  have  been  derived  from  Section 
5  of  the  Act  of  April  6,  1830,  P.  L.  272.  The  latter  section  is  printed  in 
4  Purd.  4595.  The  repeal  of  Section  5  of  the  Act  of  1830  is  recommended. 

290.  SHORT  TITLE. 

SECTION  25.  This  act  shall  be  known  and  may  be  cited  as  the 
Register  of  Wills  Act  of  1917. 

291.  REPEALER. 

SECTION  26.  The  following  acts  and  parts  of  acts  of  assembly 
are  hereby  repealed  as  respectively  indicated.  The  repeal  of  the 
first  section  of  an  act  shall  not  repeal  the  enacting  clause. 

Sections  I,  2,  5  and  8  of  an  act  entitled  "An  act  concerning  the 
probates  of  written  and  nuncupative  wills,  and  for  confirming  de- 
vises of  lands,"  passed  1705,  i  Sm.  L.  33,  absolutely. 

Sections  14,  15  and  16  of  an  act  entitled  "An  act  for  establish- 
ing orphans'  courts,"  passed  March  27,  1713,  I  Sm.  L.  81,  abso- 
lutely. 

An  act  entitled  "An  act  for  establishing  in  the  city  of  Philadel- 
phia, and  in  each  county  of  this  state,  an  office  for  the  probate  and 
registering  of  wills,  and  granting  letters  of  administration,  and  an 
office  for  the  recording  of  deeds,"  passed  March  14,  1777,  I  Sm. 
L.  443,  in  so  far  as  it  relates  to  registers  of  wills. 

Section  5  of  an  act  entitled  "An  act  to  confer  on  certain  asso- 
ciations of  the  citizens  of  this  commonwealth  the  powers  and  im- 
munities of  corporations,  or  bodies  politic  in  law,"  passed  April  6, 
I79I>  3  Sm.  L.  20,  absolutely. 

Section  2  of  an  act  entitled  "A  supplement  to  the  act,  entitled 
'An  act  to  establish  the  judicial  courts  of  this  commonwealth,  in 
conformity  to  the  alterations  and  amendments  in  the  Constitu- 
tion,' "  passed  September  30,  1791,  3  Sm.  L.  58,  absolutely. 

Section  5  of  an  act  entitled  "An  act  for  the  levy  and  collection 
of  taxes  upon  proceedings  in  courts,  and  in  the  offices  of  register 
and  recorder,  and  for  other  purposes,"  approved  April  6,  1830, 
P.  L.  272,  absolutely. 

Sections  i  to  5,  inclusive,  7  to  13,  inclusive,  17,  25,  31,  32,  36, 
38,  39,  42  and  43  of  an  act  entitled  "An  act  relating  to  registers 
and  registers'  courts,"  approved  March  15,  1832,  P.  L,.  135,  abso- 
lutely. 


198  REGISTER  OF  WILLS  ACT— SECTION  26 

Section  10  of  an  act  entitled  "An  act  supplementary  to  an  act 
passed  the  twenty-ninth  day  of  March,  one  thousand  eight  hundred 
and  thirty-two,  entitled  'An  act  relating  to  orphans'  courts,'  and 
relating  to  contracts  of  decedents  and  escheats  in  certain  cases, 
and  relative  to  the  district  court  of  the  City  and  County  of  Phila- 
delphia, and  to  registers  of  wills,"  approved  April  3,  1851,  P".  L. 
305,  absolutely. 

Sections  4  and  5  of  an  act  entitled  "An  act  for  the  preservation 
of  the  records  of  the  courts,"  approved  April  19,  1856,  P.  L.  458, 
absolutely. 

Section  7  of  an  act  entitled  "An  act  for  the  greater  certainty  of 
title  and  more  secure  enjoyments  of  real  estate,"  approved  April 
22,  1856,  P.  L.  532,  absolutely. 

An  act  entitled  "An  act  relating  to  the  fees  and  official  bond  of 
the  register  of  wills  in  counties  wherein  separate  orphans'  courts 
are  or  may  be  hereafter  established,"  approved  March  24,  1877, 
P.  L.  37,  absolutely. 

An  act  entitled  "An  act  to  provide  for  the  recording  of  inven- 
tories and  appraisements  of  decedents'  estates  by  the  register  of 
wills,"  approved  June  24,  1885,  P.  L.  155,  absolutely. 

An  act  entitled  "An  act  to  authorize  registers  of  wills  and  or- 
phans' courts  to  require  security  for  costs,  and  to  apportion  costs 
in  cases  of  caveats  and  appeals,"  approved  June  6,  1887,  P.  L.  359, 
absolutely. 

An  act  entitled  "An  act  to  provide  for  the  recording  of  exem- 
plifications of  wills  relating  to  real  estate  in  the  office  of  the  reg- 
ister of  wills  for  any  county  of  this  commonwealth,  in  which  said 
real  estate  is  situate,  and  giving  to  the  records  of  such  exempli- 
fications the  same  effect  as  the  original  wills  or  their  duly  certified 
copies  or  their  records,"  approved  April  23,  1889,  P.  L.  48,  abso- 
lutely. 

An  act  entitled  "An  act  requiring  all  public  records  within  this 
commonwealth  to  be  kept  in  the  English  language,"  approved  May 
31,  1893,  P.  L.  188,  in  so  far  as  it  relates  to  wills  and  other  in- 
struments offered  for  probate  or  recording  in  the  office  of  the 
register  of  wills. 

An  act  entitled  "An  act  amending  section  seven  of  an  act,  en- 
titled 'An  act  for  the  greater  certainty  of  title  and  more  secure 
enjoyments  of  real  estate,'  approved  twenty-second  day  of  April, 
Anno  Domini  one  thousand  eight  hundred  and  fifty-six,  relating 


REGISTER  OF  WILLS  ACT— SECTION  26  199 

to  the  time  when  the  probate  or  refusal  to  probate  a  will  shall  be 
conclusive  as  to  realty,"  approved  June  25,  1895,  P.  L.  305,  abso- 
lutely. 

An  act  entitled  "An  act  authorizing  appeals  to  orphans'  courts 
from  decisions  of  registers  of  wills,  granting  issues  devisavit  vel 
non  in  cases  of  contested  wills,"  approved  February  28,  1905,  P. 
L.  2,6,  absolutely. 

An  act  entitled  "An  act  providing  that  the  last  will  of  any  de- 
cedent, to  be  effective  against  bona  fide  conveyances  or  mort- 
gages of  the  real  or  personal  estate  of  the  decedent,  must  be  offered 
for  probate  within  three  years  from  the  date  of  the  death  of  the 
testator,  or  before  the  date  of  the  recording  of  such  conveyance 
or  mortgage,"  approved  April  I,  1909,  P.  L.  79,  absolutely. 

An  act  entitled,  "An  act  to  amend  the  second  section  of  an  act, 
approved  the  twenty-fourth  day  of  March,  Anno  Domini  one 
thousand  eight  hundred  and  seventy-seven,  entitled  'An  act  relat- 
ing to  the  fees  and  official  bond  of  the  register  of  wills,  in  counties 
wherein  separate  orphans'  courts  are  or  may  be  hereafter  estab- 
lished,' by  removing  the  restriction  as  to  population  oi  the  coun- 
ties affected  by  the  act,"  approved  April  27,  1911,  P.  L.  87,  abso- 
lutely. 

All  other  acts  of  assembly,  or  parts  thereof,  that  are  in  any  way 
in  conflict  or  inconsistent  with  this  act,  or  any  part  thereof,  are 
hereby  repealed. 


THE  INTESTATE  ACT 

of 
June  7,  1917  (P.  L.  429). 


PRELIMINARY  NOTE  BY  COMMISSION 

In  this  revised  act,  the  Commissioners  have  followed  the  phrase- 
ology of  the  existing  statutes  in  accordance  with  their  resolution 
to  make,  as  a  general  rule,  only  such  verbal  changes  as  might  be 
necessary  where  a  substantive  change  of  the  law  is  intended. 

It  is  well  at  this  point  to  note  two  important  changes  which  af- 
fect the  entire  act.  The  first  is  that  the  same  scheme  of  inheritance 
is  provided  for  both  real  and  personal  estate,  thus  ignoring  the 
distinction  that  exists  at  present  by  which  the  interests  of  the  sur- 
viving spouse  or  of  parents  are  in  some  cases  restricted  to  a  life 
interest  in  the  realty  while  their  interests  in  the  personal  estate  are 
absolute. 

The  reason  for  this  distinction  is  purely  historical ;  the  common 
law  rules  of  inheritance  of  real  estate  came  through  the  feudal 
law,  while  the  statutes  of  distribution  of  personal  estate  were  de- 
rived through  the  Roman  law,  and  were  in  England  administered 
by  the  Ecclesiastical  Courts  and  the  Court  of  Chancery.  Many 
of  the  resulting  distinctions  have  long  since  been  abolished  in  this 
commonwealth,  and  it  is  now  suggested  that  a  further  step  be 
taken,  in  thus  providing  that  the  interests  of  those  entitled  shall  be 
in  fee  in  both  realty  and  personalty.  However  venerable  the  origin 
of  the  present  law  may  have  been,  the  Commissioners  think  that 
the  difference  has  now  become  purely  arbitrary  and  produces  an 
artificial  inequality.  It  is  a  pure  accident  whether  at  the  moment 
of  a  man's  death  his  property  consists  of  lands  or  stocks  and  bonds, 
of  ground  rents  issuing  out  of  land  or  mortgages  secured  upon 
lands;  all  these  are  merely  forms  of  property  and  the  rights  of 
heirs  and  next  of  kin  should  not  be  affected  by  matters  of  accident 
rather  than  of  substance.  Land,  owing  chiefly  to  its  characteristic 
of  immobility,  may  properly,  and  indeed  sometimes  must,  be  sub- 
ject to  different  rules  from  personalty  in  such  matters  as  the 
method  of  taxation  or  conveyance,  the  regulation  of  liens,  mort- 
gages or  pledges;  but  in  such  cases  there  is  an  inherent  reason 
for  the  difference,  which  finds  no  place  in  a  logical  plan  of  inher- 

200 


INTESTATE  ACT  2OI 

itance  or  succession.  We,  therefore,  recommend  to  the  legislature 
that  all  property  where  the  owner  dies  intestate  shall  descend  or 
be  distributed  according  to  one  system.  This,  in  the  words  of  a 
distinguished  legal  scholar,  Frederic  W.  Maitland,  "is  what  a  civil- 
ized jurisprudence  requires,  and  here  as  always  scientific  juris- 
prudence is  on  the  side  of  convenience  and  common  sense." 

The  second  important  change  which  the  Commissioners  recom- 
mend is  that  the  reciprocal  rights  of  husband  and  wife  in  each 
other's  intestate  estate  should  be  the  same.  Under  the  present  law, 
the  widow,  if  there  be  no  issue,  takes  one-half  of  the  real  estate 
for  life  and  one-half  of  the  personal  estate  absolutely,  and  in  addi- 
tion, under  the  recent  Act  of  April  I,  1909,  P.  L.  87,  5  Stew. 
Purd.  6476,  five  thousand  dollars  in  real  or  personal  estate  as  she 
may  elect,  before  the  division  of  the  remainder  of  the  estate.  If 
there  be  issue,  the  widow  takes  one-third  of  the  real  estate  for  life 
and  one-third  of  the  personal  estate  absolutely.  The  surviving 
husband,  on  the  other  hand,  if  there  be  no  issue  takes  all  his  wife's 
real  estate  for  life  as  tenant  by  the  curtesy,  and  all  the  personal 
estate  absolutely,  while  if  there  be  issue  the  husband  divides  the 
personal  estate  with  the  children  share  and  share  alike,  that  is  he 
takes  a  child's  share.  These  provisions  are  the  resultant  of  the 
gradual  growth  and  changes  in  our  law  during  many  years  and 
their  complexity  is  in  practice  greatly  increased  by  the  different 
rights  given  to  the  surviving  husband  and  wife  in  electing  to  take 
against  the  will  of  the  other;  the  wife  having  the  right  to  take 
the  same  share  of  her  husband's  estate,  real  and  personal,  as  she 
would  have  taken  had  he  died  intestate;  while  the  surviving  hus- 
band, in  case  he  elects  to  take  against  his  wife's  will,  has  not  the 
right  to  take  as  in  cases  of  intestacy,  but  may  choose  either  to  take 
the  real  estate  as  tenant  by  the  curtesy  or  the  same  share  of  her 
estate  as  she  might  take  of  his  estate,  in  case  she  took  against  his 
will.  There  is  no  apparent  reason  why  the  reciprocal  rights  of 
husband  and  wife  in  each  other's  intestate  estate  should  be  so  dif- 
ferent, and  the  Commissioners  are  of  opinion  that  they  should  be 
simplified ;  that  there  should  be  given  to  the  surviving  husband  or 
wife,  in  case  of  intestacy,  the  same  right  in  the  estate,  real  and  per- 
sonal, of  the  other,  and  the  same  right  in  cases  of  testacy,  to  take 
under  the  intestate  law.  The  Commissioners  have  embodied  such  a 
provision  in  their  draft  of  the  new  Wills  Act  submitted  herewith, 
and  it  is  suggested  that  these  changes  will  reduce  our  law  upon  the 
subject  to  a  symmetrical  and  harmonious  plan. 


202  INTESTATE  ACT— CONTENTS 

While  they  are  not  so  fundamental,  other  changes  are  recom- 
mended which  deserve  particular  notice. 

In  Section  I  (a),  it  is  provided  that  where  an  intestate  leaves  a 
surviving  spouse  and  issue  one  child  only,  or  descendants  of  one 
child,  the  spouse  shall  take  one-half  instead  of  one-third  of  the 
estate. 

In  Section  2,  the  special  allowance  of  $5,000  to  a  surviving 
spouse  where  there  is  no  issue  is  restricted  to  the  case  of  actual 
intestacy,  and  no  longer  applies  when  the  surviving  spouse  elects 
to  take  against  the  will.  The  procedure  for  the  appraisement  and 
setting  apart  of  the  property  specially  allowed  is  defined  with 
greater  exactness  than  under  existing  laws. 

In  Section  4,  the  rights  of  a  surviving  husband  in  remainder 
estates  vested  in  his  deceased  wife  are  extended  so  as  to  be  uni- 
form with  those  of  a  surviving  wife. 

In  Section  9,  the  distinction  in  the  inheritance  of  real  estate  be- 
tween the  whole  and  half  blood  is  abolished ;  and  in  Section  13  the 
rule  at  present  surviving  in  some  cases  as  to  the  restriction  of  in- 
heritance to  persons  of  the  blood  of  the  first  purchaser  is  likewise 
abolished. 

In  Section  15,  the  right  of  inheritance  in  cases  of  illegitimacy 
is  extended  to  the  maternal  grandfather,  and  illegitimate  children 
are  legitimated  by  the  marriage  of  their  parents  without  the  pres- 
ent requirement  of  cohabitation. 

In  Section  16,  the  rights  of  adopted  children  are  more  accurately 
defined  in  accordance  with  the  present  legislative  policy. 

In  Section  23,  it  is  provided  that  no  murderer  shall  inherit  from 
the  person  whom  he  has  killed — the  present  law  on  this  subject 
seeming  to  the  Commissioners  to  be  opposed  to  the  sentiments  of 
morality. 

Both  this  and  the  proposed  Wills  Act  are  made  operative  only 
upon  the  estates  of  persons  dying  on  or  after  a  day  named,  sub- 
sequent to  the  approval  of  the  acts. 

TABLE  OF  CONTENTS. 

1917          Section 

Pamphlet      Number 

Laws  Herein 

The  Intestate  Act,  429               292 

v    Section     i.  Surviving  spouse  and  issue,  431               293 

\/     (a)  Surviving  spouse  and   one  child,  or  de- 
scendants of  one  child,   294 


INTESTATE  ACT— CONTENTS 


203 


1917 

Section 

Pamphlet 

Number 

Laws 

Herein 

^(b)  Surviving    spouse    and    more    than    one 

child,  or  descendants  of  more  than  one 

child,    

295 

V  Section    2.  Surviving  spouse  and  no  issue,  but  col- 

lateral heirs,    

296 

V(a)  Allowance  of  five  thousand  dollars  and 

one-half  of  remaining  estate,    

296 

(b)  Appraisement  and  appraisers,  432 

297 

(c)  Confirmation  of  appraisement,   

298 

(d)  Allowance   out  of  real  estate   valued  at 

more  than  five  thousand  dollars,   

299 

(e)  Title  to  such  real  estate,  433 

300 

(f)  Rents,  income,  interest,  and  dividends  of 

property  set  apart,   

301 

(g)  Real  estate  in  another  county,  

301 

(h)  Certified  copy  of  decree  to  be  recorded 

and  registered,    434 

303 

\xSection    3.  Widow's  share  in  lieu  of  dower;    share 

in  lands  aliened  by  husband,  and  in  es- 

tate in  remainder,    

303 

^Section    4.  Surviving    husband's    share    in    lieu    of 

curtesy  ;    share  in   estate  in  remainder, 

30S 

/^Section    5-     Husband's    right   barred   by   refusal   to 

provide  for  wife,  or  by  desertion,  .....         435 

306 

Section    6.  Widow's  right  barred  by  desertion,   .  .  . 

307 

L^Section    7.  Issue,  

308 

(a)   Children,     

309 

(b)  Grandchildren,    

310 

(c)  Descendants  in   same   degree  of  consan- 

guinity,      

3ii 

(d)  Descendants  in  different  degrees  of  con- 

sanguinity,     

312 

I.  Shares  of  children,  

313 

2.  Shares  of  grandchildren,   

314 

3.  Issue  taking  by  representation,  ....        436 

3iS 

1       Section    8.  Parents,    

316 

\*s-  Section    9.  Collateral  heirs,   

317 

(a)  Brothers   and   sisters,    

3i8 

(b)  Nephews  and  nieces,  

319 

(c)  Children  of  deceased  brothers  or  sisters, 

taking  by  representation,   

320 

(d)  Descendants  of  brothers  or  sisters,  

321 

Section  10.  Next  of  kin,  437 

322 

Section  n.  Limits  of  representation,   

323 

Section  12.  Grandparents,    and    issue    of     deceased 

grandparents,     

324 

204 


INTESTATE  ACT— CONTENTS 


1917  Section 

Pamphlet      Number 

Laws  Herein 

(a)  Children  of  deceased  grandparent,   325 

(b)  Grandchildren   of    deceased   grandparent,  326 

(c)  Descendants  of   deceased  grandparent  in 

same  degree  of  consanguinity,  438  327 

(d)  Descendants  of  deceased  grandparent  in 

different  degrees  of  consanguinity,  ....  328 

1.  Children  of  deceased  grandparent,  329 

2.  Grandchildren   of   deceased   grand- 

parent,       330 

3.  Issue  taking  by  representation,   ...  331 
Section  13.  Rule    as    to    blood    of    first    purchaser 

abrogated,     332 

Section  14.  Foregoing  provisions  apply  only  to  legiti- 
mates,    333 

Section  15.    Illegitimates,    439  334 

(a)  Inheritance    as    between    mother,    grand- 

parents, and  child,  334 

(b)  Inheritance   as   between    children,    legiti- 

mate and  illegitimate,  335 

(c)  Legitimation  as  to  mother,  but  not  as  to 

father,    336 

(d)  Legitimation  by  marriage  of  parents,  ....  337 
Section  16.  Adopted  children 338 

(a)  Inheritance    as    between    adopted    person 

and  adopting  parents,  338 

(b)  Inheritance    as    between    adopted    person 

and  adoptive  relatives ;    natural  kindred 

of  adopted  person  excluded,   339 

Section  17.  Surviving  spouse  and  no  known  heirs  or 

kindred    440  340 

(a)  Rights  of  surviving  spouse  340 

(b)  Procedure,     341 

Section  18.  Estates  passing  to  persons  entitled  under 

the  act,    441  342 

Section  19.  Persons  in  same  degree  of  consanguinity 
take  equally,  

Section  20.  Posthumous  children,    

Section  21.  Limitation  of  claims,  

Section  22.  Advancements 442 

^   Section  23.  Person  adjudged  guilty  of  murder  not  to 

inherit  from  murdered  person,  347 

Section  24.  Escheat,    348 

Section  25.  Act  not  to  apply  to  personal  estate  of  in- 
testate dying  domiciled  outside  the  com- 
monwealth,    349 

Section  26.  Short  title  section,   350 

Section  27.  When  act  shall  go  into  operation,  351 

Section  28.  Repealer 442-7  352 


INTESTATE  ACT— SECTION  i  («)  205 

292.  TITLE. 

AN  ACT. 

Relating  to  the  descent  and  distribution  of  the  real  and  personal 
property  of  persons  dying  intestate,  and  to  provide  for  the  record- 
ing and  registering  of  the  decrees  of  the  orphans'  court  in  con- 
nection therewith  and  the  fees  therefor. 

"The  Act  of  1917  was  the  result  of  the  efforts  of  a  commission,  ap- 
pointed by  the  Governor  of  the  Commonwealth,  to  codify,  or  assemble 
into  one  group,  the  numerous  provisions  on  our  statute  books  dealing  with 
the  intestate  law  and  kindred  matters ;  and  the  commission  itself  framed 
the  act.  The  bill  thus  prepared  was  passed  by  the  legislature  without 
the  slightest  deviation  from  the  recommendations  of  its  draftsmen,  so 
far  as  the  portions  having  any  bearing  on  this  case  are  concerned ;  and, 
when  the  historical  development  of  this  branch  of  our  statutory  law  is 
considered,  together  with  the  whole  structure  of  the  present  statute,  it  is 
apparent  that  no  radical  changes  or  departures  from  preexisting  rules 
of  inheritance  were  intended.  On  the  contrary,  the  mischief  to  be  cor- 
rected lay  in  the  fact  that  there  were  too  many  acts  covering  the  subject- 
matter,  not  that  the  rules  there  laid  down  were  either  wrong  or  undesir- 
able, and  the  remedy  intended,  at  least  as  to  the  sections  here  involved 
(see  322,  323,  324  and  343  infra.),  was  simply  their  codification,  or  putting 
together,  in  a  single  act.  Of  course,  this  combination  of  various  legisla- 
tive enactments  into  one  statute  necessitated  the  insertion  of  certain  in- 
troductory parts,  and,  as  already  said,  Section  10  is  of  that  nature ;  it 
must  be  taken  with  the  other  parts,  to  which  it  is  introductory,  in  order 
to  ascertain  its  true  meaning."  Moschzisker,  C.  J.  in  opinion  January  3, 
1922,  in  Miles'  Est,  272  Pa.  329. 

293.  SURVIVING  SPOUSE  AND  ISSUE. 

SECTION  i.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  Commonwealth  of  Pennsylvania  in  General  As- 
sembly met,  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
That  the  real  and  personal  estate  of  a  decedent,  whether  male  or 
female,  remaining  after  payment  of  all  just  debts  and  legal  charges, 
which  shall  not  have  been  sold,  or  disposed  of  by  will,  or  other- 
wise limited  by  marriage  settlement,  shall  be  divided  and  enjoyed 
as  follows:  namely, — 

294.  SURVIVING  SPOUSE  AND  ONE  CHILD  OR  DE- 

SCENDANTS OF  ONE  CHILD. 

(a)  Where  such  intestate  shall  leave  a  spouse  surviving  and 
one  child  only,  or  shall  leave  a  spouse  surviving  and  no  children 


206  INTESTATE  ACT— SECTION  i  (a) 

but  shall  leave  descendants  of  one  deceased  child,  the  spouse  shall 
be  entitled  to  one-half  part  of  the  real  and  personal  estate. 

NOTE. — The  introductory  paragraph  is  copied  from  Section  i  of  the 
Act  of  April  8,  1833,  P.  L.  315,  2  Purd.  1994,  which  was  amended  by  the 
Act  of  April  i,  1909,  P.  L.  87,  5  Purd.  6476.  Clause  (a)  is  clause  i  of 
the  same  section,  amended  so  as  to  make  the  rights  of  husband  and  "wife 
the  same  and  to  eliminate  the  distinction  between  real  and  personal  prop- 
erty in  this  regard,  and  to  give  the  surviving  spouse  one-half  of  the  estate 
under  the  circumstances  described. 

Section  i  of  the  Act  of  1833  was  derived  from  Sections  3  and  4  of  the 
Act  of  April  19,  1794,  3  Sm.  L.  143.  The  earlier  acts  provided,  in  sub- 
stance, as  follows:  Act  of  1683  (noth  Law):  "That  the  estate  of  an 
intestate  shall  go  to  his  wife,  his  child,  or  children."  Act  of  1684  (i72d 
Law)  :  "One-third  of  the  personal  estate  shall  go  to  the  wife;  and  one- 
third  of  the  lands  and  tenements  during  her  natural  life;  *  *  *  and  in 
case  the  intestate  leaves  no  child,  then  half  the^  personal  estate  to  the 
widow,  and  the  moiety  of  the  real  estate  during  her  natural  life."  Act 
of  1693:  "One-third  to  the  wife,  the  residue  among  his  children  *  *  *; 
and  if  there  be  no  children  nor  legal  representatives  of  them,  one  moiety 
shall  be  allotted  to  the  wife.  *  *  *  Provided,  That  where  testators',  or 
intestates'  personal  estates  are  sufficient  to  pay  all  debts,"  and  so  forth, 
"then  the  real  estate  to  be  distributed  in  manner  following,  *  *  *  one- 
third  of  all  intestates'  lands  to  the  wife  for  life."  Act  of  1705  (3  Sm. 
L.  156  n.)  :  "One-third  part  of  the  said  surplusage  to  the  wife  of  the  in- 
testate. *  *  *  And  in  case  there  be  no  children,  nor  any  legal  represen- 
tatives of  them,  then  one  moiety  of  the  said  estate  to  be  allotted  to  the 
wife  of  the  intestate." 

Section  8  of  the  Act  of  1705  provided:  "That  the  surplusage  or  remain- 
ing part  of  the  intestate's  lands,  tenements  and  hereditaments  *  *  *  shall 
be  divided  between  the  intestate's  widow  and  children,  or  the  survivors 
of  them,  who  shall  equally  inherit  and  make  partition,  as  tenants  in  com- 
mon may  or  can  do.  But  if  the  intestate  leaves  a  widow  and  no  child, 
then  such  widow  or  relict  shall  inherit  one  moiety  or  half  part  of  the  said 
lands  and  tenements." 

Section  10  of  the  Act  of  1705  provided:  "That  nothing  in  this  act  con- 
tained shall  give  any  widow  a  right  or  claim  to  any  part  of  such  lands 
or  tenements,  for  her  dower  or  thirds,  as  shall  yield  yearly  rents,  or 
profits,  whereof  her  husband  died  seized,  for  any  longer  time  than  the 
term  of  her  natural  life;  which  dower  she  shall  hold  as  tenants  in  dower 
do  in  England." 

Section  2  of  the  Act  of  March  23,  1764  (3  Sm.  L.  159  n.)  provided: 
"That  the  shares  and  purparts  of  intestates'  real  estates  which  by  the  act 
for  settling  intestates'  estates  aforesaid  are  given  to  widows,  shall  be  con- 
strued and  understood  to  be  estates  for  their  natural  lives,  respectively, 
and  not  otherwise." 

Section  5  of  the  Act  of  April  4,  1797  (3  Sm.  L.  296)  provided :  "That 
where  any  woman  shall  hereafter  die  intestate"  leaving  a  husband,  "he 
shall  take  the  whole  personal  estate,  and  the  real  estate  shall  descend 


INTESTATE  ACT— SECTIONS  i  (a),   (6)-2  (a)  207 

and  go  in  the  same  manner  as  is  directed  in  the  case  of  men  dying  intestate, 
saving  to  the  husband  his  right  as  tenant,  by  the  curtesy." 

In  this  section,  the  Commissioners  have  introduced  a  change  which  they 
consider  a  much  needed  improvement.  The  Act  of  1833  provides  for  two 
cases :  first,  where  there  is  no  issue,  and  second,  where  there  is  issue. 
This  clause  provides  for  the  case  where  there  is  issue  one  child,  or  the 
descendants  of  one  child  only;  in  which  case  the  surviving  spouse  will 
take  not  one-third,  but  one-half  of  the  estate.  It  seems  unjust  where  a  man 
dies  leaving  a  widow  and  one  child,  often  a  minor,  that  the  single  child 
should  receive  twice  as  much  as  its  mother,  and  many  cases  of  hardship 
have  been  observed  in  practice.  In  Rowan's  Estate,  132  Pa.  299,  an 
adopted  child  was  thus  held  entitled  to  two-thirds  of  the  estate  as  against 
the  widow. 

In  this  section  and  throughout  the  act  the  Commissioners  have  used  the 
words,  "surviving  spouse,"  in  place  of  "widow  or  surviving  husband,"  and 
the  like,  believing  that  the  use  of  one  word  is  preferable  when  there  can 
be  no  mistake  as  to  the  meaning,  and  where  the  interests  of  widow  and 
husband  are  made  the  same,  as  it  is  now  suggested  they  should  be. 

"The  Intestate  Act  of  June  7,  1917,  P.  L.  429,  places  the  husband  and 
wife  on  a  parity  as  to  inheritance  from  each  other."  Per  Williams,  J.,  in 
Caldwell  v.  Caldwell,  70  Super.  332,  p.  336. 

295.  SURVIVING  SPOUSE  AND  MORE  THAN  ONE 

CHILD  OR  DESCENDANTS  OF  MORE  THAN 
ONE  CHILD. 

(6)  Where  such  intestate  shall  leave  a  spouse  surviving  and 
more  than  one  child,  or  one  child  and  the  descendants  of  a  deceased 
child  or  children,  or  the  descendants  of  more  than  one  deceased 
child,  the  surviving  spouse  shall  be  entitled  to  one-third  part  of 
the  real  and  personal  estate. 

NOTE. — This  is  a  new  clause,  further  amending  clause  i  of  Section  i, 
of  the  Act  of  1833,  along  the  same  lines. 

See  Commonwealth  v.  Rife,  50  Pa.  C.  C.  22. 

296.  SURVIVING  SPOUSE  AND  NO  ISSUE  BUT  COL- 

LATERAL   HEIRS,— ALLOWANCE    OF   $5,000 
AND  ONE-HALF  OF  REMAINING  ESTATE. 

SECTION  2.  (a)  Where  such  intestate  shall  leave  a  spouse  surviv- 
ing and  other  kindred,  but  no  issue,  the  surviving  spouse  shall  be 
entitled  to  the  real  or  personal  estate,  or  both,  to  the  aggregate 
value  of  five  thousand  dollars,  in  addition,  in  the  case  of  a  widow, 
to  the  widow's  exemption  as  allowed  by  law;  and,  if  such  estate 
shall  exceed  in  value  the  sum  of  five  thousand  dollars,  the  sur- 


208  INTESTATE  ACT— SECTION  2(0) 

viving  spouse  shall  be  entitled  to  the  sum  of  five  thousand  dollars 
absolutely,  to  be  chosen  by  him  or  her  from  real  or  personal  es- 
tate, or  both,  and  in  addition  thereto  shall  be  entitled  to  one-half 
part  of  the  remaining  real  and  personal  estate :  Provided,  That  the 
provisions  of  this  clause  as  to  said  five  tfiousand  dollars  in  value* 
shall  apply  only  to  cases  of  actual  intestacy  of  husband  or  wife, 
entire  or  partial,  and  not  to  cases  where  the  surviving  spouse  shall 
elect  to  take  against  the  will  of  the  deceased  spouse. 

NOTE. — This  is  clause  n  of  Section  i  of  the  Act  of  1833,  as  amended 
by  the  Acts  of  April  i,  1909,  P.  L.  87,  5  Purd.  6476,  and  July  21,  1913, 
P.  L.  875,  5  Purd.  6478,  further  amended  so  as  to  apply  expressly  to  hus- 
band as  well  as  wife,  so  as  to  be  limited  to  cases  of  actual  intestacy,  and 
so  as  to  make  the  estate  of  the  surviving  spouse  absolute  in  real  as  well 
as  personal  property. 

The  words  "collateral  heirs"  are  omitted  in  the  second  line,  as  they  ex- 
clude parents  and  grandparents. 

In  accordance  with  their  view  that  the  interests  of  the  surviving  hus- 
band and  wife  should  be  the  same,  the  Commissioners  have  made  the  pro- 
visions of  the  Act  of  April  i,  1909,  apply  equally  to  both  cases.  The  spe- 
cial allowance  of  $5,000  where  there  is  no  issue,  conferred  upon  the 
widow  by  this  act,  appears  to  have  been  favorably  considered  during  the 
time  it  has  been  in  operation,  and  no  change  in  the  amount  is  suggested. 
The  Act  of  April  i,  1909,  was  most  probably  not  intended  by  the  legisla- 
ture to  apply  to  the  case  of  a  husband  who  should  elect  to  take  against 
the  will  of  his  wife  (there  being  no  issue),  but  this  result  followed  logically 
from  a  consideration  and  comparison  of  the  Acts  of  April  8,  1833,  P-  L. 
315,  April  n,  1848,  Section  n,  P.  L.  536,  and  May  4,  1855,  Section  i,  P.  L. 
430,  as  shown  in  Buckland's  Estate,  239  Pa.  608;  Moore's  Estate,  50  Super. 
Ct.  76. 

A  result  of  the  Act  of  1909  in  connection  with  prior  legislation  is  that 
a  married  person  having  no  issue  whose  estate  amounts  to  $5,000  or  less 
cannot  make  any  testamentary  disposition  of  his  or  her  estate.  The  Com- 
missioners recommend  in  this  section  that  the  special  allowance  of  1909 
shall  be  made  only  in  cases  of  actual  intestacy,  and  not  where  the  surviv- 
ing spouse  elects  to  take  against  the  will  of  the  deceased  spouse. 

See  Shoch's  Est.,  271  Pa.  158  afFg.  29  Dist.  1163. 

Under  the  Intestate  Act  of  June  7,  1917,  P.  L.  429,  Section  2  (a),  when 
a  husband  dies  intestate  leaving  a  widow,  but  no  issue,  the  share  to  which 
the  widow  becomes  entitled  vests  in  her  absolutely  as  an  inheritance,  and 
on  the  death  of  the  widow,  intestate,  passes  to  her  next  of  kin. 

In  such  case  her  next  of  kin  are  entitled  to  have  $5,000  in  value  of  the 
husband's  estate  appraised  and  set  apart  for  their  benefit,  although  no 
claim  therefor  was  made  by  the  widow  in  her  lifetime.  Nolan's  Est.,  68 
P.  L.  J.  588,  21  Lack.  239,  2  Erie  211,  9  Lehigh  57. 


*Amended  by  Act  of  July  n,  1917  (P.  L,,  403), 


INTESTATE  ACT— SECTION  2  (a)  209 

The  $5,000  preference  allowed  to  a  widow  under  the  Act  of  June  7, 
1917,  P.  L.  429  (Intestate  Act),  is  a  vested  interest  in  her  at  the  death  of 
her  husband,  and  this  she  cannot  be  deprived  of  except  by  her  own  act. 
If  the  widow  dies  without  having  made  any  demand  for  it  in  her  lifetime, 
her  next  of  kin  are  entitled  to  claim  it  after  her  death,  and  the  claim  may 
be  made  for  them  by  her  personal  representative.  Desmond's  Est.,  28 
Dist.  231,  36  Lane.  217,  8  Leh.  255. 

"The  controlling  distinction  between  the  law  relating  to  the  $500  ex- 
emption and  the  $5,000  allowed  to  widows  under  the  Act  of  1917  is  that 
the  $5,000  worth  of  property,  real  or  personal,  vests  in  the  widow  at  the 
death  of  her  husband,  and  does  not  require  any  action  on  her  part  to  se- 
cure the  same. 

"The  $500  exemption  does  not  vest  at  the  death  of  the  husband,  but  only 
when  she  has  elected  to  exercise  the  right,  and  this  her  executor  or  ad- 
ministrator cannot  do  for  her  after  her  death."  Per  Maxwell,  P.  J.,  in 
Desmond's  Est.,  28  Dist.  231,  36  Lane.  217,  8  Leh.  255. 

(Note. — It  would  seem  to  be  improper  practice  to  join  in  one  petition 
a  claim  for  an  allowance  of  $5,000  and  a  claim  for  the  exemption  of  $500. 
—Editor.) 

A  common  law  marriage  with  decedent  duly  proven  to  the  satisfaction  \  A* 
of  the  court  will  enable  the  widow  to  successfully  claim  the  allowance.  , 
Wandall's  Est.,  29  Dist.  1132. 

A  mere  irregularity  in  a  divorce  proceeding,  rendering  the  decree  voidable, 
but  not  void,  especially  under  attack  by  one  not  a  party,  will  not  deprive 
the  widow  of  her  right  to  the  allowance.  McDonald's  Est.,  268  Pa.  486, 
112  Atl.  98,  reversing  i  Wash.  10,  49  Pa.  C.  C.  423. 

A  widow  electing  against  her  deceased  husband's  will  is  excluded  from 
the  benefits  of  the  special  allowance  of  $5,000  under  Section  2  (a)  of  the 
Intestate  Act  of  June  7,  1917,  P.  L.  429,  as  amended  by  the  Act  of  July  n, 
1917,  P.  L.  755- 

The  plain  intention  of  these  statutes  to  exclude  from  the  benefit  of  the 
special  allowance  a  spouse  electing  to  take  against  the  will  of  the  de- 
ceased spouse  prevails  against  the  less  certain  provision  of  Section  23  of 
the  Wills  Act  of  June  7,  1917,  P.  L.  403. 

Section  2  (a)  of  the  Intestate  Act  and  its  amendment  of  July  n,  1917, 
are  not  in  conflict  with  Art.  Ill,  Sec.  3,  of  the  Constitution,  as  the  title 
of  the  Intestate  Act  is  sufficiently  germane  to  the  body  of  the  act.  Col- 
lom's  Est.,  47  Pa.  C.  C.  434,  28  Dist  503.  See,  also,  Pfanen Schmidt's  Est., 
35  Montg.  135;  Langerwisch's  Est.,  47  Pa.  C.  C.  121,  28  Dist.  470,  8 
Leh.  147,  affirmed  in  267  Pa.  319,  no  Atl.  165. 

Where  a  man  dies  after  the  passage  of  the  Act  of  July  n,  1917,  P.  L. 
755,  which  amended  the  Act  of  June  7,  1917,  P.  L.  429,  leaving  to  survive 
him  a  widow  and  collateral  kin,  and  leaving  a  will  by  which  he  directed 
his  estate  to  be  distributed  in  accordance  with  the  intestate  laws,  and  by 
which  he  directed  his  executrix,  the  widow,  to  convert  into  money  all  his 
real  and  personal  property,  and  the  widow  elects  to  take  under  the  will, 
the  court  will  refuse  the  widow's  petition  for  the  appointment  of  apprais- 
ers to  set  apart  real  and  personal  property  to  the  value  of  $5,000;  but  the 
dismissal  of  the  petition  will  be  without  prejudice  to  the  right  of  the 
14 


210  INTESTATE  ACT— SECTION  2  (a) 

widow  to  enforce  her  claim  by  taking  credit  therefor  in  the  settlement  of 
her  account  as  executrix,  and  urging  it  upon  final  distribution. 

Such  a  case  is  not  one  of  intestacy,  and  therefore  the  Acts  of  June 
7,  1917,  P.  L.  429,  and  July  n,  1917,  P.  L.  755,  have  no  application,  since 
they  relate  solely  to  the  descent  and  distribution  of  the  real  and  personal 
property  of  persons  dying  intestate. 

Where,  as  here,  the  widow  takes  in  money,  no  appraisement  is  necessary. 
Carrell's  Estate,  264  Pa.  140. 

Under  subdivision  (a)  as  amended  June  II,  1917,  P.  L.  755,  and  sub- 
divisions (&)  and  (d)  of  Section  2  of  the  Intestate  Act  of  June  7,  1917, 
P.  L.  429,  the  collateral  heirs  cannot  control  in  their  own  interest  the  elec- 
tion of  a  spouse  to  take  certain  property  for  his  or  her  special  allowance 
of  $5,000. 

"Nowhere  in  the  act  is  there  any  restriction  upon  the  freedom  of  its 
beneficiary  to  choose  the  property  of  the  estate  he  or  she  will  take  in  sat- 
isfaction of  this  portion  of  the  inheritance  it  provides,  but  on  the  contrary, 
the  act  expressly  directs  that  the  portion  shall  'be  chosen  by  him  or  her 
from  real  or  personal  estate,  or  both.'  In  a  case  under  the  Widow's  Ex- 
emption Act  of  1851,  it  was  ruled  that  a  creditor  of  an  insolvent  could  not 
control  the  widow's  election  to  save  himself  from  loss :  Graves's  Estate, 
134  Pa.  377.  A  fortiori,  the  collateral  heirs  who  are  mere  volunteers,  can- 
not control  in  their  own  interest  the  election  of  the  favored  heir  under  the 
Intestate  Act."  Barnett,  P.  J.,  in  Troutman's  Est.,  30  Dist.  708. 

Where  a  widow  makes  her  will,  marries  a  second  time,  and  dies  leaving 
in  existence  the  will  made  prior  to  her  second  marriage,  her  surviving  hus- 
band is  entitled  under  the  Wills  Act  of  June  7,  1917,  P.  L.  403,  and  the 
Intestate  Act  of  June  7,  1917,  P.  L.  429,  as  amended  by  the  Act  of  July 
II,  1917,  P.  L.  755,  to  the  allowance  of  $5,000  provided  by  the  Intestate  Act. 
By  her  remarriage  her  will,  as  to  her  second  husband,  was  annulled,  and 
there  was  an  actual  intestacy  as  to  him.  Shestack's  Estate,  267  Pa.  115, 
no  Atl.  1 66. 

Intestacy  may  result  not  merely  from  the  testator's  failure  to  make  a 
will  at  all,  or  from  his  failure  to  dispose  in  his  will  of  all  his  estate,  but 
also  from  his  failure  to  make  a  legal  and  effectual  disposition  of  either 
his  entire  estate  or  a  portion  of  it. 

Where  a  charitable  bequest  of  the  residuary  estate  is  void  under  the 
Wills  Act  of  June  7,  1917,  Sec.  6,  P.  L.  403,  because  of  the  death  of  the 
testator  within  thirty  days  after  making  the  will,  there  is  an  actual,  al- 
though partial,  intestacy  within  the  meaning  of  the  Intestate  Act  of  June 
7,  1917,  Sec.  2  (a),  P.  L.  429,  as  amended  by  the  Act  of  July  u,  1917,  P. 
L.  755,  which  gives  the  surviving  spouse  of  an  intestate  (there  being  no 
issue)  a  special  allowance  of  $5,000  out  of  the  real  or  personal  estate,  in 
addition  to  the  one-half  of  the  remaining  estate.  McNulty's  Estate,  29 
Dist.  709. 

On  a  petition  for  the  widow's  claim  for  $5,000  under  the  Intestate  Act 
of  July  u,  1917,  Section  2,  P.  L.  755,  which  she  claimed  from  the  real  es- 
tate left  by  the  decedent,  consisting  of  two  properties,  appraisers  were 
appointed  and  appraised  the  properties  at  $15,000.  One  of  the  next  of  kin 
filed  exceptions  to  this  appraisement,  and  a  bona  fide  written  offer  of 
$20,000  was  made  for  the  properties,  and  it  appeared  that  the  property 


INTESTATE  ACT— SECTION  2  (a)  211 

next  door,  consisting  of  a  property  similar  to  one  of  these,  had  been  sold 
for  $15,000.  Under  these  facts  the  court  refused  to  approve  the  appraise- 
ment and  ordered  the  appraisers  to  make  a  reappraisement.  Brady's  Es- 
tate, 29  Dist.  24. 

The  constitutionality  of  the  amending  Act  of  July  n,  1917,  having  been 
attacked,  the  Supreme  Court,  in  a  per  curiam  opinion,  affirming  Langer- 
wisch's  Estate,  supra,  said : 

"Diedrich  Langerwisch  died  testate  February  3,  1919,  leaving  a  widow, 
but  no  issue.  She  elected  to  take  against  his  will,  and  claimed  such  interest 
in  his  real  and  personal  estate  as  would  have  passed  to  her  if  he  had  died 
intestate.  Her  claim,  disallowed  by  the  court  below,  was  for  $5,000  out  of 
her  husband's  real  or  personal  estate,  in  addition  to  the  exemption  al- 
lowed her  by  law.  It  was  disallowed,  because  Section  2,  clause  (o),  of 
the  Act  of  June  7,  1917,  P.  L,.  429,  as  amended  by  the  Act  of  July  n,  1917, 
P.  L.  755,  provides  the  'clause  as  to  said  five  thousand  dollars  in  value 
shall  apply  only  to  cases  of  actual  intestacy  of  husband  or  wife.'  On  this 
appeal  the  sole  contention  of  the  appellant  is  that  the  amending  act  is 
unconstitutional,  in  that  it  violates  Section  3  and  Section  7,  clause  16,  of 
Article  III,  of  the  Constitution.  It  is  entitled,  'An  act  to  amend  Section 
two  clause  (a)  of  the  Intestate  Act  of  one  thousand  nine  hundred  and 
seventeen,  approved  June  seventh,  one  thousand  nine  hundred  and  seven- 
teen, by  inserting  in  the  proviso  to  said  clause  the  words  'as  to  said  five 
thousand  dollars  in  value.'  This  title  contains  but  one  subject,  which  is 
'clearly  expressed'  and  the  act  is  a  general  law,  not  a  local  or  special  one, 
'changing  the  law  of  descent  or  succession.'  This  is  too  plain  for  dis- 
cussion." Langerwisch's  Est.,  267  Pa.  319;  no  Atl.  165. 

The  fact  that  the  Orphans'  Court  Partition  Act  of  1917  (P.  L.  338),  in 
Sections  15,  18  and  29  appears  to  concede  to  the  widow  a  lesser  estate  in 
lands  of  the  decedent  than  that  conferred  by  the  Intestate  Act  of  1917 
(P.  L.  431),  approved  the  same  day,  does  not  in  any  way  affect  the 
quantum  of  the  estate  taken  by  the  widow  under  the  latter  act.  If  there 
were  any  conflict  between  the  two  acts,  the  Intestate  act  must  govern  as 
to  the  interest  taken,  the  Partition  Act  having  to  do  merely  with  procedure, 
and  the  enforcement  of  rights  conferred  by  the  Intestate  Act.  But  the 
alleged  conflict  is  only  apparent,  and  the  references  in  the  Partition  Act 
to  the  life  estate  of  the  widow  are  evidently  intended  to  refer  to  estates 
of  persons  dying  prior  to  the  Intestate  Act  of  1917. 

"Under  Section  2  (a)  of  the  Intestate  Act  of  1917,  P.  L.  431,  the  widow 
is  apparently  entitled  in  fee  to  an  undivided  one-half  part  or  interest  in 
decedent's  real  estate;  while  Sections  15,  18  and  29  of  the  Orphans'  Court 
Partition  Act  of  1917,  P.  L.  337  (approved  the  same  day  as  the  last  men- 
tioned statute)  appear  to  concede  to  the  widow  but  a  lesser  share  in  said 
lands,  to  wit,  a  life  estate  only;  the  respondent  in  its  answer  directing 
our  special  attention  to  certain  language  appearing  in  said  last  named  act, 
to  wit,  in  Section  15,  the  words  'where  by  existing  laws  the  widow  is  en- 
titled to  a  dower  of  one-third  in  the  real  estate  and  *  *  *  where  by  ex- 
isting laws  the  widow  is  entitled  to  a  dower  of  one-half  in  the  real  es- 
tate,' and  in  Section  18,  the  words  'should  the  widow  of  the  decedent  be 


212  INTESTATE  ACT— SECTION  2  (a) 

*  *  *  entitled  to  a  life  estate  in  one-half  or  one-third  of  the  real  estate 
under  the  intestate  laws,  or  should  such  widow  elect  to  take  against  the 
will  of  the  decedent  and  thereby  be  entitled  to  such  a  life  estate'  and  in 
Section  29,  the  words  'if  there  be  a  widow  entitled  to  a  life  interest  in 
such  real  estate  under  the  intestate  laws,  or  should  such  widow  elect  to 
take  against  the  will  and  thereby  be  entitled  to  such  life  estate.' " 

"As  the  decedent,  William  S.  Dodd,  whose  estate  is  before  us,  died  on 
September  19,  1920,  to  wit,  long  after  December  31,  1917,  the  date  upon 
which  the  Wills  Act  of  1917,  P.  L.  403,  and  the  Intestate  Act  of  1917, 
P.  L.  429,  both  became  operative,  this  estate,  its  administration  and  devolu- 
tion, are  therefore  manifestly  subject  to  the  control  of  these  two  statutes. 
We  are,  therefore,  clearly  of  the  opinion  that  the  petitioner,  as  widow  of 
the  decedent,  upon  her  electing  to  take  against  her  husband's  will  became, 
under  Section  23  of  the  said  Wills  Act  of  1917,  P.  L.  403,  and  under  Sec- 
tion 2  (a)  of  the  said  Intestate  Act  of  1917,  P.  L.  429,  entitled  to  and  in- 
vested with,  an  undivided  one-half  part,  share  or  interest  in  fee  simple, 
in  said  decedent's  real  estate;  and  that  the  cited  portions  of  the  said 
Orphans'  Court  Partition  Act  of  1917,  P.  L.  337  (15,  18  and  29),  do  not 
and  are  not  designed  to  diminish  such  fee  simple  share,  part  or  interest 
so  prescribed  for  the  widow  in  and  by  the  said  Wills  Act  and  Intestate 
Act."  *  *  *  "It  is  the  intestate  laws  of  the  commonwealth  which  de- 
termine all  matters  pertaining  to  the  descent  and  inheritance  of  estates  of 
decedents ;  fixing  the  character,  kind,  quantity  and  amount  of  the  inter- 
ests of  shares  in  decedents'  real  and  personal  property  which  shall  pass  to 
and  vest  in  surviving  spouses  and  kinsmen.  The  Partition  Acts  merely 
provide  the  method  for  enforcing  the  rights  so  conferred  by  the  Intestate 
Acts.  Hence,  it  follows  that  on  general  principles,  were  there  indeed  a 
clash  or  conflict  between  the  provisions  of  the  Intestate  Act  of  1917,  P.  L. 
429,  and  of  the  Orphans'  Court  Partition  Act  of  1917,  P.  L.  337,  on  a  mat- 
ter of  quantity,  size,  amount  of  shares  or  interests  of  a  decedent's  estate  to 
descend  or  vest,  the  latter  statute  (merely  prescribing  procedure)  would, 
of  necessity  yield  to  the  former  statute  as  to  matters  so  lying  exclusively 
within  the  scope  and  province  of  the  said  Intestate  Act. 

"However,  the  respondent,  in  its  answer,  has  not  directed  our  attention 
to  or  shown  that  there  really  exists  any  clash  or  conflict  between  the  two 
statutes  under  consideration.  By  its  express  terms,  the  Intestate  Act  of 
1917,  P.  L.  429,  becoming  operative  and  effective  on  December  31,  1917, 
is  made  to  apply  to  estates,  real  and  personal  of  all  persons  dying  intestate 
on  or  after  the  said  day  so  designated ;  expressly  providing  that  as  to  the 
estates,  real  and  personal,  of  persons  dying  before  the  day  designated,  the 
existing  laws  should  remain  in  full  force  and  effect.  Under  Section  i  of 
the  Act  of  April  8,  1833,  P.  L.  316,  which  applies  to  and  controls  the 
devolution  of  estates  of  intestates  dying  before  December  31,  1917,  a 
surviving  widow  was  entitled  to  certain  interests  in  her  husband's  real 
estate  for  life  only,  to  wit,  so-called  statutory  dower,  i.  e.,  a  life  estate 
in  a  third  or  a  half  part  of  such  lands,  depending  on  whether  the  decedent 
had  left  any  children  or  issue.  The  Intestate  Act  of  1917,  P.  L.  429,  gives 
the  widow  of  an  intestate  dying  on  or  after  December  31,  1917,  not  statu- 
tory dower  as  under  the  old  law,  but  certain  interests  in  fee  simple  in  the 
decedent's  real  estate,  to  wit,  an  undivided  one-third  part  thereof  or  an 


INTESTATE  ACT— SECTION  2  (a),  (&)  213 

undivided  half  part  thereof  or  more,  depending  on  whether  or  not  the 
decedent  leaves  children  or  issue,  and  if  so,  the  number  thereof.  The 
Orphans'  Court  Partition  Act  had  to  be  drafted  by  the  lawmakers  to  meet 
the  circumstances  and  requirements  of  the  estates  of  all  intestates,  to  wit, 
those  dying  before,  as  well  as  those  dying  after  December  31,  1917;  for 
such  act  was  to  apply  to  estates  of  decedents  irrespective  of  the  dates  of 
their  respective  deaths.  Now,  as  to  widows  of  intestates  dying  after  De- 
cember 31,  1917,  no  special  mention  of  the  shares  of  such  widows  therein 
was  in  such  act  necessary ;  for,  thereunder  surviving  spouses  taking  shares 
in  fee,  such  shares  are  of  precisely  the  same  character  and  quality  as, 
and,  therefore,  fall  in  the  same  category  with,  the  other  shares  and  inter- 
ests vesting  in  the  decedent's  descendants  or  collateral  kinsmen.  The  said 
act,  however,  had  to  make  and  preserve  special  provision  for  the  statutory 
dower  of  widows  of  husbands  dying  prior  to  December  31,  1917,  which 
circumstance  accounts  for  and  explains  the  use  of  the  pointed  out  lan- 
guage appearing  in  Sections  15,  18  and  29  of  the  said  act.  The  purpose 
and  necessity  for  such  provisions  and  language  is  manifest,  to  wit,  being 
designed  and  required  to  provide  for  the  life  interests  of  widows  in  es- 
tates of  intestates  dying  before  December  31,  1917,  and  in  estates  of  tes- 
tates dying  before  said  date,  where  the  widows  elect  to  take  against  the 
wills  of  their  respective  husbands.  Accordingly  we  reach  the  conclusion 
that  there  exists  no  clash  nor  conflict  between  the  provisions  of  the  Or- 
phans' Court  Act  of  1917,  P.  L.  337,  and  the  Intestate  Act  of  1917,  P.  L. 
429;  at  least  as  to  any  matter  to  which  the  petitioner  has  directed  our  atten- 
tion. It  is  well  to  observe,  moreover,  in  passing  that  did  indeed  such 
conflict  exist  between  the  provisions  of  the  two  statutes  under  consid- 
eration, the  provisions  of  the  Orphans'  Court  Partition  Act  of  1917,  P. 
L.  337,  aside  from  its  being  a  mere  possessory  action,  would,  for  another 
important  reason,  be  legally  forced  to  yield  to  the  pertinent  provisions  of 
the  Intestate  Act  of  1917,  P.  L.  429,  as  to  all  matters  within  the  scope  of 
the  last  mentioned  statute;  for,  the  latter  act,  although  approved  the  same 
day  as  the  former  act  became  operative  long  after  the  said  Orphans'  Court 
Partition  Act  had  become  law ;  so  that  the  Intestate  Act  thus  later  be- 
coming operative,  would  automatically  and  of  necessity  supersede  such 
provisions  of  the  Partition  Act,  if  any,  in  conflict  with  the  provisions  of 
the  said  Intestate  Act."  Dodd's  Estate,  i  Wash.  236. 

297.     APPRAISEMENT  AND  APPRAISERS. 

(&)  The  appraisement  and  setting  apart  of  the  said  five  thou- 
sand dollars  in  value  of  property  shall  be  made  by  two  appraisers, 
who  shall  be  appointed  by  the  orphans'  court  having  jurisdiction 
of  the  accounts  of  the  personal  representatives  of  such  intestate, 
and  shall  be  sworn  or  affirmed  to  appraise  the  property  which  the 
surviving  spouse  shall  choose  under  the  provisions  of  this  act. 
Each  of  such  appraisers  shall  receive,  as  compensation  for  each 
day  or  fraction  thereof  necessarily  employed  in  the  performance 


214  INTESTATE  ACT— SECTION  2  (&) 

of  their  duties,  the  sum  of  two  dollars  and  fifty  cents,  and  such 
additional  amount  as  may  be  allowed  by  said  court. 

NOTE. — This  is  founded  on  the  Act  of  April  i,  1909,  P.  L.  87,  5  Purd. 
6476,  as  amended  by  the  Act  of  July  21,  1913,  P.  L.  875,  5  Purd.  6478,  fur- 
ther amended  so  as  to  provide  for  the  appointment  by  the  orphans'  court 
of  two  appraisers,  for  the  swearing  or  affirming  of  such  appraisers,' and 
for  their  compensation. 

The  Commissioners  have  concluded  that  the  appraisement  of  the  prop- 
erty chosen  by  the  surviving  spouse  to  be  awarded  under  this  act  should 
be  made  by  appraisers  appointed  by  the  court  rather  than  by  the  ap- 
praisers of  the  "other  personal  estate,"  as  is  now  the  law.  In  many  cases, 
where  real  estate  is  selected,  the  regular  appraisers  are  not  necessarily 
qualified  to  value  it,  and  as  the  rights  of  the  heirs  are  involved,  it  seems 
best  that  the  appraisers  should  be  formally  appointed. 

In  this  and  other  clauses  of  the  act  relating  to  this  special  allowance, 
the  Commissioners  have  avoided  any  reference  to  the  procedure  under 
prior  acts  of  assembly  relating  to  the  widow's  exemption,  which  introduced 
a  needless  complication  in  the  Act  of  April  I,  1909. 

See  Desmond's  Est.,  28  Dist.  231,  36  Lane.  217,  8  Leh.  255. 

The  orphans'  court  possesses  no  jurisdictional  authority  to  appoint  ap- 
praisers to  appraise  and  set  aside  estate  property  claimed  as  and  for  a  $5,- 
ooo  allotment  for  the  surviving  spouse  of  an  intestate  dying  before  Decem- 
ber 31,  1917;  the  power  of  the  said  court  being  limited  and  confined  to 
appointing  substitute  appraisers  to  take  the  place  of  estate  appraisers  ap- 
pointed by  the  personal  representatives  of  the  estate  but  who  are  unable 
to  act.  Hilton's  Est.,  i  Wash.  125. 

Under  subdivision  (a)  as  amended  June  n,  1917,  P.  L.  755,  and  sub- 
divisions (b)  and  (d)  of  Section  2  of  the  Intestate  Act  of  June  7,  1917, 
P.  L.  429,  the  collateral  heirs  cannot  control  in  their  own  interest  the  elec- 
tion of  a  spouse  to  take  certain  property  for  his  or  her  special  allowance 
of  $5,000. 

No  appeal  is  given  from  the  report  of  the  appraisers  fixing  the  value 
of  the  property  from  which  a  spouse  elects  to  take  his  or  her  special  al- 
lowance, and  in  the  absence  of  fraud  or  collusion  or  such  clear  under- 
valuation of  the  property  as  may  suggest  fraud  or  collusion,  the  valuation 
fixed  by  the  appraisers  will  not  be  interfered  with. 

The  mere  fact  that  one  of  two  appraisers  was  a  second  cousin  of  the 
widow  is  not  ground  for  setting  the  appraisement  aside. 

"No  appeal  is  given  from  the  report  of  the  appraisers.  They  are  the 
tribunal  created  by  the  act  for  the  purpose  of  appraising  the  property  the 
spouse  elects  to  take  under  this  section,  and  in  the  absence  of  fraud  or 
collusion,  or  of  such  clear  undervaluation  of  the  property  as  may  suggest 
fraud  or  collusion,  their  valuation  should  not  be  interfered  with."  *  *  * 
"The  fifth  exception  is  likewise  without  merit.  One  of  the  two  apprais- 
ers was  a  second  cousin  of  the  widow.  But  in  Vandevort's  Appeal,  43 
Pa.  462,  two  of  the  three  appraisers  were  brothers-in-law  of  the  widow, 


INTESTATE  ACT— SECTION  2  (&),  (c),  (d)  215 

and  it  was  held  by  the  Supreme  Court  that  'the  mere  fact  of  the  relation- 
ship of  two  of  three  appraisers  to  the  decedent  or  the  widow  is  not 
enough  to  avoid  their  proceedings."  Barnett,  P.  J.,  in  Troutman's  Est., 
30  Dist.  708. 

298.  CONFIRMATION  OF  APPRAISEMENT. 

(c)  Upon  due  proof  of  compliance  with  such  requirements  as 
to  notice,  by  advertisement  or  otherwise,  as  may  be  prescribed  by 
the  orphans'  court  by  general  rule  or  otherwise,  such  court  may 
confirm  such  appraisement  and  set  apart  such  personal  or  real  es- 
tate, or  both,  to  the  surviving  spouse,  subject  to  claims  of  creditors 
of  the  decedent  and  to  the  lien  of  debts  of  the  decedent. 

NOTE. — This  is  a  new  clause,  introduced  in  order  to  give  the  orphans' 
court  express  power  to  set  apart  property  claimed  by  the  surviving  spouse, 
in  advance  of  the  distribution  of  the  estate. 

299.  ALLOWANCE  OUT  OF  REAL  ESTATE  VALUED 

AT  MORE  THAN  $5,000. 

(d)  Whenever  the  surviving  spouse  of  any  intestate  shall  claim 
the  said  five  thousand  dollars  in  value,  or  any  part  thereof,  under 
the  provisions  of  this  act,  out  of  real  estate  left  by  said  intestate, 
and  the  real  estate  appraised  cannot  be  divided  so  as  to  set  apart 
the  amount  so  claimed  in  value  without  prejudice  to  or  spoiling 
the  whole  or  any  parcel  of  said  real  estate,  and  the  appraisers  shall 
appraise  and  value  the  same  at  any  sum  exceeding  the  amount  so 
claimed,  it  shall  be  lawful  for  the  orphans'  court,  to  which  such 
application  shall  be  made,  to  confirm  such  appraisement,  and  to  set 
apart  for  the  use  of  the  surviving  spouse  such  real  estate,  condi- 
tioned, however,  that  the  said  surviving  spouse   shall  pay  the 
amount  of  the  valuation  or  appraisement  in  excess  of  the  amount 
so  claimed  within  one  year  from  the  date  of  confirmation  of  such 
valuation.     If  the  said  surviving  spouse  shall  refuse  to  take  the 
real  estate  at  such  appraisement,  or  shall  fail  to  make  payment  as 
above  provided,  the  court,  on  application  of  any  person  interested, 
shall  direct  the  executor  or  administrator  to  sell  the  same,  and  the 
procedure  in  such  case  shall  be  the  same  as  is  provided  by  law  in 
cases  of  sales  of  real  estate  for  the  payment  of  debts  of  a  decedent. 

NOTE.— This  is  Section  i  of  the  Act  of  July  21,  1913,  P.  L.  872,  5  Purd. 
6478,  altered  in  the  following  particulars: 

The  language  is  changed  so  as  to  apply  to  cases  where  the  real  estate  in 
question  consists  of  more  than  one  parcel  and  no  single  parcel  is  worth 
five  thousand  dollars,  but  all  of  them  are  worth  more  than  that  amount. 


216  INTESTATE  ACT— SECTION  2  (rf),  («),  (/) 

The  language  is  also  changed  so  as  to  cover  cases  where  part  of  the 
five  thousand  dollars  is  taken  in  personal  property  and  the  amount  claimed 
out  of  real  estate  is  therefore  less  than  five  thousand  dollars.  The  same 
change  is  made  in  subsequent  clauses. 

The  words,  "or  fails  to  make  payment  as  above  provided,"  are  inserted 
in  the  last  sentence,  also  changed  so  as  to  provide  that  the  sale  shall  be 
made  by  the  executor  or  administrator,  and  so  as  to  prescribe  the  pro- 
cedure. 

Under  subdivision  (a)  as  amended  June  n,  1917,  P.  L.  755,  and  sub- 
divisions (ft)  and  (rf)  of  Section  2  of  the  Intestate  Act  of  June  7,  1917, 
P.  L.  429,  the  collateral  heirs  cannot  control  in  their  own  interest  the 
election  of  a  spouse  to  take  certain  property  for  his  or  her  special  allow- 
ance of  $5,000. 

"No  appeal  is  given  from  the  report  of  the  appraisers.  They  are  the 
tribunal  created  by  the  act  for  the  purpose  of  appraising  the  property  the 
spouse  elects  to  take  under  this  section,  and  in  the  absence  of  fraud  or 
collusion,  or  of  such  clear  undervaluation  of  the  property  as  may  sug- 
gest fraud  or  collusion,  their  valuation  should  not  be  interfered  with." 
******** 

"The  fifth  exception  is  likewise  without  merit.  One  of  the  two  ap- 
praisers was  a  second  cousin  of  the  widow.  But  in  Vandevort's  Appeal, 
43  Pa.  462,  two  of  the  three  appraisers  were  brothers-in-law  of  the  widow, 
and  it  was  held  by  the  Supreme  Court  that  'the  mere  fact  of  the  relation- 
ship of  two  out  of  three  appraisers  to  the  decedent  or  the  widow  is  not 
enough  to  avoid  their  proceedings."  Barnett,  P.  J.,  in  Troutman's  Est, 
30  Dist.  708. 

300.  TITLE  TO  SUCH  REAL  ESTATE. 

(?)  The  real  estate,  if  taken  by  the  surviving  spouse  as  afore- 
said, shall  vest  in  him  or  her  and  his  or  her  heirs  or  assigns  upon 
his  or  her  paying  the  surplus  over  and  above  the  sum  of  five  thou- 
sand dollars  or  such  part  thereof  as  may  be  claimed  out  of  the  real 
estate  to  the  parties  entitled  thereto.  Where  the  real  estate  is  sold 
as  provided  in  clause  (d)  of  this  section,  the  sum  of  five  thousand 
dollars  or  such  part  thereof  as  may  be  claimed  out  of  the  real 
estate  shall  be  paid  out  of  the  purchase  money  to  the  surviving 
spouse,  and  the  balance,  after  payment  of  costs  and  expenses,  shall 
be  distributed  to  the  heirs,  or  other  persons  legally  entitled  thereto. 

NOTE. — This  is  Section  2  of  the  Act  of  July  21,  1913,  P.  L.  872,  5  Purd. 
6478,  omitting  the  words,  "if  the  real  estate  should  not  be  so  taken  at  the 
appraisement,"  and  substituting  a  reference  to  the  preceding  clause. 

301.  RENTS,  INCOME,  INTEREST  AND  DIVIDENDS 

OF  PROPERTY  SET  APART. 

(/)  In  all  cases  where  the  appraisement  of  property,  real  or  per- 
sonal or  both,  is  confirmed  and  the  property  set  apart  to  the  sur- 


INTESTATE  ACT— SECTION  2  (/),  (<?)  217 

viving  spouse  under  the  provisions  of  this  section,  said  surviving 
spouse  shall  be  entitled  to  receive  for  his  or  her  own  use  the  net 
rents,  income,  interest  and  dividends  thereof  from  the  date  of  the 
death  of  such  intestate.  Where  the  property  set  apart  shall  consist 
of  real  estate  appraised  at  a  sum  in  excess  of  five  thousand  dollars 
or  such  part  thereof  as  may  be  claimed  out  of  the  real  estate,  and 
the  surviving  spouse  shall  fail  to  pay  the  excess  over  the  amount 
so  claimed  as  provided  in  clause  (d)  of  this  section,  and  the  prop- 
erty shall  thereupon  be  sold,  there  shall  be  deducted  from  the  sum 
to  be  paid  to  said  surviving  spouse  out  of  the  proceeds  of  such 
sale  a  proportionate  part  of  the  rents  and  income  of  such  real 
estate  received  by  such  surviving  spouse. 

NOTE. — This  is  a  new  clause,  introduced  to  include  the  right  to  the  in- 
come of  the  property  set  apart  to  the  surviving  spouse  from  the  date  of 
the  death  of  the  intestate. 

In  the  case  of  intestacy  without  issue,  the  surviving  spouse  is  not  en- 
titled to  interest  on  the  special  allowance  of  $5,000  under  Section  2  (/) 
of  the  Intestate  Act  of  June  7,  1917,  P.  L,.  429,  in  addition  to  the  income 
of  the  property  set  aside  or  awarded  to  him.  Fretz's  Est.,  28  Dist.  645. 

302.  REAL  ESTATE  IN  ANOTHER  COUNTY. 

(g)  Whenever  the  surviving  spouse  of  any  intestate  shall  claim 
the  said  five  thousand  dollars  in  value,  or  any  part  thereof,  under 
the  provisions  of  this  section,  out  of  real  estate  left  by  said  intes- 
tate and  lying  in  any  county  of  this  state  other  than  the  county 
wherein  said  intestate  shall  be  domiciled  at  the  time  of  his  or  her 
death,  and  the  orphans'  court  having  jurisdiction  of  the  accounts 
of  the  personal  representatives  of  said  intestate  shall  be  satisfied, 
upon  petition  filed,  of  the  propriety  of  allowing  such  claim  the 
court  may  make  a  decree  authorizing  such  surviving  spouse  to  file 
his  or  her  petition  in  the  orphans'  court  of  the  county  wherein 
such  real  estate  may  lie,  or,  in  a  case  where  the  real  estate  is  di- 
vided by  a  county  line,  in  the  county  where  the  mansion  house  may 
be  situated,  or,  if  there  be  no  mansion  house,  in  the  county  where 
the  principal  improvements  may  be,  or,  if  there  be  no  improve- 
ments, in  either  county,  praying  for  the  appointment  of  two  ap- 
praisers. 

Upon  the  filing  of  such  petition,  duly  verified,  the  latter  court 
shall  appoint  such  appraisers,  who  shall  be  duly  sworn  or  affirmed, 
and  shall  appraise  said  real  estate,  and  shall  be  compensated  as 
provided  in  clause  (&)  of  this  section;  and  proceedings  shall  there- 


218  INTESTATE  ACT— SECTION  2  (g),   (h) 

upon  be  had  in  said  court  and  subject  to  its  supervision  and  con- 
trol, in  the  same  manner  and  with  the  same  effect  as  is  provided 
in  clauses  (c),  (d),  (e)  and  (/)  of  this  section.  In  every  such 
case  a  certified  copy  of  the  decree  confirming  such  appraisement, 
or  of  such  decree  of  sale  and  the  confirmation  thereof,  as  the  case 
may  be,  shall  forthwith  be  filed  with  the  clerk  of  the  orphans' 
court  having  jurisdiction  of  the  accounts  of  the  personal  represen- 
tatives of  said  intestate. 

The  court  having  jurisdiction  of  the  accounts  shall  in  all  cases 
have  exclusive  jurisdiction  of  the  distribution  of  the  surplus  paid 
by  such  surviving  spouse,  or  of  the  proceeds  of  such  sale,  after  the 
payment  of  costs  and  expenses,  as  the  case  may  be. 

NOTE. — This  is  a  new  clause,  introduced  to  cover  the  case  of  lands  lying 
in  other  counties.  It  is  modeled  to  some  extent  upon  Section  32  of  the 
Act  of  March  29,  1832,  P.  L.  190,  I  Purd.  1118,  relating  to  sales  for  the 
payment  of  debts. 

It  seems  clear  that  the  distribution  of  the  estate,  and  the  setting  apart 
of  the  reaLestate  chosen  by  the  surviving  spouse  should  be  made  under 
the  control  of  the  orphans'  court  of  the  county  having  jurisdiction  of  the 
accounts  of  the  administrator  or  executor,  and  it  seems  equally  clear  that 
some  record  should  be  made  of  the  decree  in  the  county  where  the  real 
estate  is  situated,  and  that  the  sale  should  be  under  the  direction  of  the 
orphans'  court  of  that  county. 

303.  CERTIFIED  COPY  OF  DECREE  TO  BE  RE- 
CORDED AND  REGISTERED. 

(/z)  In  all  cases  where  a  decree  shall  be  entered  by  any  orphans' 
court  confirming  an  appraisement  of  real  estate  and  setting  apart 
the  same  for  the  use  of  the  surviving  spouse,  a  certified  copy  of 
such  decree  shall  be  recorded  in  the  office  of  the  recorder  of  deeds 
of  each  county  where  such  real  estate  shall  lie,  in  the  deed  book, 
and  shall  be  indexed  by  the  recorder  in  the  grantors'  index  under 
the  name  of  the  decedent,  and  in  the  grantees'  index  under  the 
name  of  the  surviving  spouse,  and  shall  be  registered  in  the  survey 
bureau,  or  with  the  proper  authorities  empowered  to  keep  a  reg- 
ister of  real  estate,  if  any  there  be,  in  said  county ;  and  the  charges 
for  recording  and  registering  shall  be  the  same  as  are  provided  by 
law  for  similar  services,  and  shall  be  paid  by  said  surviving  spouse. 

NOTE. — This  is  a  new  clause,  introduced  for  the  sake  of  convenience  in 
connection  with  the  title  to  real  estate. 


INTESTATE  ACT— SECTION  3  219 

304.  WIDOW'S  SHARE  IN  LIEU  OF  DOWER;  SHARE 
IN  LANDS  ALIENED  BY  HUSBAND  AND  IN 
ESTATE  IN  REMAINDER. 

SECTION  3.  The  shares  of  the  estate  directed  by  this  act  to  be 
allotted  to  the  widow  shall  be  in  lieu  and  full  satisfaction  of  her 
dower  at  common  law  so  far  as  relates  to  lands  of  which  the  hus- 
band died  seized;  and  her  share  in  lands  aliened  by  the  husband 
in  his  lifetime  without  her  joining  in  the  conveyance  shall  be  the 
same  as  her  share  in  lands  of  which  the  husband  died  seized.  The 
widow  shall  be  entitled  to  the  same  share  in  an  estate  in  remainder 
vested  in  interest  in  the  husband  during  his  lifetime,  although  the 
particular  estate  shall  not  terminate  before  the  death  of  the  hus- 
band. 

NOTE.— This  is  Section  15  of  the  Act  of  April  8,  1833,  P.  L.  315,  2  Purd. 
2002,  altered  so  as  to  make  the  widow's  share  in  lands  aliened  by  the 
husband  without  her  joinder  the  same  as  her  share  in  lands  of  which  he 
dies  seized.  The  last  sentence  is  added  to  correspond  with  the  last  sen- 
tence of  Section  4  of  this  act. 

Section  15  of  the  Act  of  1833,  was  derived  from  Section  13  of  the  Act 
of  April  19,  1794,  3  Sm.  L,.  143- 

Where  it  was  claimed  by  counsel  for  the  widow  that  her  right  in  the 
coal  and  mining  rights,  conveyed  during  coverture  without  her  joinder 
in  the  deed  of  conveyance,  is  that  prescribed  by  Section  3  of  the  Intestate 
Act  of  June  7,  1917,  P.  L.  429,  to  wit,  not  her  share  as  prescribed  by  the 
common  law,  but,  instead,  a  share  'the  same  as  her  share  in  lands  of  which 
her  husband  died  seized' ;  this  contention  being  followed  up  with  the  claim 
that  because  the  decedent  died  since  the  Intestate  Act  of  1917  became 
operative,  the  widow  is  entitled  to  a  one-third  share  of  aliened  lands  in 
fee  simple,  and  not  merely  a  life  interest  in  one-third  of  said  real  estate 
under  common  law  or  prescribed  by  the  Intestate  Act  of  April  8,  1833, 
P.  L.  315.  Hughes,  P.  J.,  held,  inter  alia: 

"As  we  are  about  to  hold  that  this  court  is  without  jurisdiction  of  the 
subject  matter  involved,  it  will  be  unnecessary  for  us  to  pass  upon  these 
contentions  of  the  petitioner's  counsel.  If  such  contentions  are  to  be  sup- 
ported and  upheld  by  the  court  of  competent  jurisdiction  called  to  pass 
upon  the  said  contentions,  it  will  be  by  holding  that  the  provisions  of 
Section  3  of  the  Intestate  Act  of  June  7,  1917,  P.  L.  429,  are  (as  to  lands 
aliened  by  a  decedent  in  his  lifetime)  retroactive  in  effect,  and,  accord- 
ingly, applicable  to  such  transfers  of  lands  consummated  before  as  well 
as  after  the  said  statute  became  operative.  There  is  very  grave  doubt  if 
such  conclusions  could  be  reached  by  such  court  in  view  of  the  doctrine 
supported  by  the  Pennsylvania  decisions,  which  uniformly  held  that  vested 
rights,  such  as  those  of  the  respondents  in  the  case  at  bar  in  the  aliened 
coal  and  mining  rights,  are  not  to  be  taken  away,  impaired  or  disturbed  by 
statutory  enactments:  Taylor  v.  Mitchell,  57  Pa.  209  (1868);  Barnesboro 


220  INTESTATE  ACT— SECTIONS  3-4 

Borough  v.  Speice,  40  Pa.  Superior  Ct.  609  (1909).  Furthermore,  it  may 
not  be  improper  for  us  to  suggest  that  the  constitutionality  of  this  pro- 
vision of  the  said  Act  of  June  7,  1917,  P.  L.  429,  upon  which  the  peti- 
tioner rests  her  claims,  may  be  seriously  questioned.  The  title  of  the 
statute  indicates  that  it  is  'An  act  relating  to  the  descent  and  distribution 
of  the  real  and  personal  property  of  persons  dying  intestate,'  etc.  The 
provisions  of  Section  3  under  consideration  concern  lands  which  are  aliened 
by  the  husband  in  his  lifetime,  and  which,  accordingly,  at  his  death,  do 
not  form  any  part  of  his  real  or  personal  property  or  estate.  Hence,  it 
might  be  argued  with  effect  that  the  failure  of  the  title  of  the  statute  to 
reveal  its  intendment  to  govern  real  estate  other  than  that  of  which  de- 
cedents die  seized,  renders  the  provisions  as  to  such  aliened  lands  unconsti- 
tutional and  inoperative. 

"We  leave  these  legal  questions  to  be  determined  by  a  court  of  competent 
jurisdiction,  whose  duty  it  will  be  to  decide  and  adjudicate  the  share  to 
which  the  petitioner  is  entitled  in  the  said  aliened  lands.  But  whether 
such  interest  in  such  aliened  lands  shall  be  determined  by  the  said  court 
to  be  the  share  fixed  for  her  by  the  common  law  or  a  substitute  for  the 
common  law  share  created  by  the  Intestate  Act  of  June  7,  1917,  P.  L.  429, 
such  interest  or  share  will  not  be  'statutory  dower'  nor  recoverable  by  her 
as  'statutory  dower'  through  partition  proceedings.  To  recover  her  share 
in  such  aliened  lands,  whether  it  be  determined  to  be  true  common  law 
dower  or  the  substitute  therefor  attempted  to  be  created  by  Section  3  of 
the  Intestate  Act  of  June  7,  1917,  P.  L.  429,  her  remedy  will  be  the  same, 
to  wit,  by  an  appropriate  action  in  the  common  law  courts  and  not  by 
partition  proceedings  in  the  orphans'  court. 

"We  believe  our  conclusions  will  be  found  to  be  sound  and  supported  by 
the  decisions  of  the  courts  of  Pennsylvania,  if  references  be  had  to  the 
cases."  Stockdale's  Est.,  29  Dist.  1013. 

305.  SURVIVING  HUSBAND'S  SHARE  IN  LIEU  OF 
CURTESY;  SHARE  IN  ESTATE  IN  REMAIN- 
DER. 

SECTION  4.  The  shares  of  the  estate  directed  by  this  act  to  be 
allotted  to  the  surviving  husband  shall  be  in  lieu  and  full  satisfac- 
tion of  his  curtesy  at  common  law.  The  surviving  husband  shall 
be  entitled  to  the  same  share  in  an  estate  in  remainder  vested  in 
interest  in  the  wife  during  her  lifetime  as  in  property  of  which 
she  dies  seized,  although  the  particular  estate  shall  not  terminate 
before  the  death  of  the  wife. 

NOTE. — This  is  a  new  section  introduced  in  accordance  with  the  plan  to 
make  the  rights  of  the  husband  and  wife  the  same.  The  last  sentence  is 
added  to  make  the  husband's  rights  the  same  as  those  of  the  wife  in  es- 
tates in  remainder,  the  existing  law  making  a  distinction  in  this  respect. 
See  Hitner  v.  Ege,  23  Pa.  305. 


INTESTATE  ACT— SECTIONS  5-6  221 

306.  HUSBAND'S  RIGHT  BARRED  BY  REFUSAL  TO 

PROVIDE  FOR  WIFE,  OR  BY  DESERTION. 

SECTION  5.  No  husband  who  shall  have,  for  iQne  year)  or  up- 
wards previous  to  the  death  of  his  wife,  wilfully  neglected  or  re- 
fused  to  provide  for  his  wife,  or  shall  have,  for  that  period  or  up- 
wards, wilfully  and  maliciously  deserted  her,  shall  have  the  right 
to  claim  any  title  or  interest  in  her  real  or  personal  estate  after  her 
decease,  under  the  provisions  of  this  act. 

NOTE. — This  is  part  of  Section  5  of  the  Act  of  May  4,  1855,  P.  L.  430, 
3  Purd.  2461,  amended  by  the  Act  of  May  3,  1915,  P.  L.  234,  6  Purd.  6588, 
omitting  the  words,  "as  aforesaid,"  before  the  words,  "for  one  year  or 
upwards." 

Where  the  evidence  adequately  supported  the  conclusion  of  the  court 
that  under  the  particular  circumstances  indicated  by  the  evidence  the 
husband  was  living  apart  from  his  wife,  the  decedent,  with  her  tacit  con- 
sent and  that  he  was  not  guilty  of  wilfully  neglecting  to  provide  for  her 
within  the  meaning  of  this  section  of  the  act,  it  was  held  that  he  had  not 
forfeited  his  interest  in  her  estate.  Phillips'  Est.,  271  Pa.  129. 

307.  WIDOW'S  RIGHT  BARRED  BY  DESERTION. 

SECTION  6.  No  wife  who  shall  have,  forgone  year) or  upwards, 
previous  to  the  death  of  her  husband,  wilfully  and  maliciously  de- 
serted her  husband,  shall  have  the  right  to  claim  any  title  or  in- 
terest in  his  real  or  personal  estate  after  his  decease,  under  the 
provisions  of  this  act. 

NOTE. — This  is  the  part  added  to  Section  5  of  the  Act  of  1855,  by  the 
amendment  of  1915,  with  the  substitution  of  the  words  "under  this  act," 
for  "under  the  intestate  laws  of  this  commonwealth." 

This  was  held  to  be  a  reenactment  of  the  Act  of  May  3,  1915  (P.  L.  429), 
in  Post's  Estate,  27  Dist.  748,  36  Lane.  8,  66  P.  L,.  J.  761,  8  Leh.  115,  33 
York  ii. 

Under  the  Intestate  Act  of  1917,  a  wife,  who  left  her  husband  and 
maintained  unlawful  association  with  another  from  1908  until  1918  when 
her  husband  died,  she  as  well  as  her  legal  representatives  are  barred  from 
participating  in  his  estate,  when,  from  the  evidence  it  could  not  be  found 
as  a  fact,  that  she  was  justified  in  deserting  him. 

When,  from  the  evidence  it  can  be  found  that  a  wife  was  iustifiedJn  de-_ 
serting  her   husband,   her  subsequent   unlawful  association   with  another 
man  would  not  bar  her  from  sharing  in  his  estate  after  his  decease.    Can- 
navan's  Est.,  69  P.  L.  J.  84. 

Where  a  husband  and  wife  entered  into  an  agremeent  in  writing  in 
which  they  recite  that,  because  of  "divers  disputes  and  differences,  they 
have  consented  and  agreed  to  live  separately  and  apart  from  each  other 


222  INTESTATE  ACT— SECTIONS  6-7  (a) 

during  their  natural  lives,"  and  there  is  nothing  to  show  that  either  ever 
released,  waived  or  relinquished  his  or  her  rights  in  the  estate  of  the 
other,  including  the  right  of  inheritance,  and  they  lived  apart  until  the 
husband's  death,  the  children  of  the  husband  cannot,  after  his  death,  op- 
pose the  allowance  to  the  wife  of  her  statutory  interest  in  her  husband's 
estate,  under  the  Act  of  June  7,  1917,  P.  L.  429,  on  the  ground  of  willful 
and  malicious  desertion.  As  the  husband  was  content  with  the  provisions 
of  the  agreement  during  his  lifetime,  his  children  cannot  do  what  their 
father  did  not  see  fit  to  undertake  while  he  lived.  Lawton's  Est.,  266  Pa. 
558,  106  Atl.  699. 

Under  this  section  of  the  act  where  "it  was  agreed  by  everybody  that 
the  claimant  was  the  surviving  widow  of  the  deceased  testator,  manifestly 
the  burden  of  proof  was  upon  those  who  asserted  she  had  forfeited  her 
right  because  of  her  wilful  and  malicious  desertion  of  her  husband." 

Head,  J.,  in  Schreckengost's  Est.,  77  Super.  235. 

308.  ISSUE. 

SECTION  7.  The  real  and  personal  estate  of  such  intestate,  not 
hereinbefore  given  to  the  surviving  spouse,  if  any  there  be,  shall 
descend  to  and  be  distributed  among  his  or  her  issue,  according  to 
the  following  rules  and  order  of  succession,  namely, — 

309.  CHILDREN. 

(a)  If  such  intestate  shall  leave  children,  but  no  other  descend- 
ant, being  the  issue  of  a  deceased  child,  the  estate  shall  descend  to 
and  be  distributed  among  such  children. 

NOTE. — This  is  clause  i  of  Section  2  of  the  Act  of  1833,  2  Purd.  1996, 
modified  in  language  because  of  the  abolition  of  life  estates  to  the  widow 
and  surviving  husband. 

Clauses  (6),  (c)  and  (d)  of  Section  7  are  copied  from  clauses  2,  3  and 
4  of  Section  2  of  the  Act  of  1833. 

Section  2  of  the  Act  of  1833  was  derived  from  Sections  3  and  4  of  the 
Act  of  April  19,  1794,  3  Sm.  L.  143. 

The  earlier  acts  provided,  in  substance,  as  follows:  Act  of  1683  (noth 
Law)  :  "That  the  estate  of  an  intestate  shall  go  to  his  wife,  his  child,  or 
children."  Act  of  1684  (i72d  Law)  :  "The  remainder  (after  the  widow's 
share)  shall  go  to  the  children,  the  eldest  son  having  a  double  part  or 
share."  Act  of  1693:  "One-third  to  the  wife,  the  residue  among  his  chil- 
dren, and  such  as  legally  represent  them  (if  any  of  them  be  dead)  the 
eldest  son  having  a  double  part  or  share,"  and,  as  to  real  estate,  "the  resi- 
due to  be  allotted  and  distributed  as  the  surplusage  of  personal  estate  is 
limited  and  directed."  Act  of  1705  (3  Sm.  L.  156  n.)  :  "All  the  residue, 
by  equal  portions,  to  and  amongst  the  children  of  such  person  dying  intes- 
tate, allowing  the  eldest  son  two  shares ;  and  to  such  persons  as  legally 
represent  such  children,  in  case  any  of  the  said  children  be  then  dead 
*  *  *  to  whom  such  distribution  is  to  be  made."  Section  8  of  the  Act  of 
1705  provided  that  "the  surplusage  or  remaining  part  of  the  intestate's 
lands,  tenements  and  hereditaments,  not  sold,  or  ordered  to  be  sold,  by 


INTESTATE  ACT— SECTION  7  (a),  (&),  (c),  (rf)  223 

virtue  of  this  act,  and  not  otherwise  limited  by  marriage  settlement,  shall 
be  divided  between  the  intestate's  widow  and  children,  or  the  survivors 
of  them,  who  shall  equally  inherit  and  make  partition,  as  tenants  in 
common  may  or  can  do.  *  *  *  But  if  the  intestate  leaves  no  widow  nor 
child  living  at  the  time  of  his  death,  or  if  the  children  all  die  in  their 
minority,  without  issue,  then  the  said  lands  and  tenements  shall  descend 
and  come  to  the  intestate's  heir  at  law,  according  to  the  course  aforesaid. 
But  if  any  of  the  intestate's  children,  dying  before  the  intestate,  shall  leave 
lawful  issue,  such  issue  shall  equally  inherit  the  intestate's  lands  and  tene- 
ments, with  their  uncles  or  aunts,  and  make  partition  as  aforesaid."  Act 
of  March  23,  1764  (3  Sm.  L.  159  n.)  :  "If  after  the  death  of  any  father 
and  mother  any  of  their  children  hath  died,  or,  at  any  time  after  the  pass- 
ing of  this  act  shall  die  intestate,  in  their  minority,  unmarried,  and  without 
issue,  but  not  otherwise,  the  lands,  tenements,  hereditaments  and  estates, 
real  and  personal,  of  every  such  intestate,  shall  be  equally  divided  amongst 
the  surviving  children,  and  the  representatives  of  any  child  or  children 
then  dead,  those  representatives  taking  only  such  part  or  share,  as  should 
have  passed  to  the  child  or  children  they  represent  respectively  in  sev- 
eralty  forever.  But  if  any  child,  either  of  age  or  in  his  or  her  minority, 
having  or  being  entitled  to  any  personal  estate  under  such  father,  shall, 
after  the  passing  of  this  act,  die  intestate,  unmarried,  and  without  issue, 
during  the  life  of  his  or  her  mother,  all  such  personal  estate  shall  be 
equally  divided  between  such  mother  of  the  deceased,  and  his  or  her 
brothers  and  sisters,  and  their  legal  representatives,  in  case  any  such 
brother  or  sister  be  then  dead,  they  the  said  representatives  only  taking 
the  share  that  should  have  passed  to  his,  her  or  their  parents,  had  he  or 
she  been  living." 

310.  GRANDCHILDREN. 

(&)  If  such  intestate  shall  leave  grandchildren  but  no  child  or 
other  descendant,  being  the  issue  of  a  deceased  grandchild,  the  es- 
tate shall  descend  to  and  be  distributed  among  such  grandchildren. 

311.  DESCENDANTS    IN    SAME    DEGREE    OF    CON- 

SANGUINITY. 

(c)  If  such  intestate  shall  leave  descendants  in  other  degrees 
of  consanguinity,  however  remote  from  him,  and  all  in  the  same 
degree  of  consanguinity  to  him,  the  estate  shall  descend  to  and  be 
distributed  among  such  descendants. 

312.  DESCENDANTS  IN  DIFFERENT  DEGREES  OF 

CONSANGUINITY. 

(rf)  If  such  intestate  shall  leave  descendants  in  different  de- 
grees of  consanguinity  to  him,  the  more  remote  of  them  being  the 


224  INTESTATE  ACT— SECTIONS  7  (d),  i,  2,  3-8 

issue  of  a  deceased  child,  grandchild  or  other  descendant,  the  estate 
shall  descend  to  and  be  distributed  among  them  as  follows, 
namely, — 

313.  SHARES  OF  CHILDREN. 

1.  Each  of  the  children  of  such  intestate  shall  receive  such  share 
as  such  child  would  have  received  if  all  the  children  of  the  intestate 
who  shall  then  be  dead,  leaving  issue,  had  been  living  at  the  death 
of  such  intestate. 

314.  SHARES  OF  GRANDCHILDREN. 

2.  Each  of  the  grandchildren,  if  there  shall  be  no  children,  in 
like  manner,  shall  receive  such  share  as  he  or  she  would  have  re- 
ceived if  all  the  other  grandchildren  who  shall  then  be  dead,  leav- 
ing issue,  had  been  living  at  the  death  of  the  intestate,  and  so  in 
like  manner,  to  the  remotest  degree. 

315.  ISSUE  TAKING  BY  REPRESENTATION. 

3.  In  every  such  case,  the  issue  of  such  deceased  child,  grand- 
child or  other  descendant,  shall  take,  by  representation  of  their 
parents,  respectively,  such  shares  only  as  would  have  descended 
to  such  parents,  if  they  had  been  living  at  the  death  of  the  in- 
testate. 

316.  PARENTS. 

SECTION  8.  In  default  of  issue  as  aforesaid,  the  real  and  per- 
sonal estate  of  such  intestate,  not  hereinbefore  given  to  the  sur- 
viving spouse,  if  any  there  be,  shall  go  to  and  be  vested  in  the 
father  and  mother  of  such  intestate,  or  if  either  the  father  or 
mother  be  dead  at  the  time  of  the  death  of  the  intestate,  the  parent^ 
surviving  shall  take  such  real  and  personal  estate. 

NOTE. — This  is  derived  from  Sections  3  and  5  of  the  Act  of  1833,  2  Purd. 
1997-8,  altered  so  as  to  abolish  the  distinction  between  real  and  personal 
estates  and  give  both  to  the  parents  absolutely,  and  modified  in  language 
because  of  the  abolition  of  life  estates  to  the  widow  and  surviving  husband. 

Section  3  of  the  Act  of  1833  was  derived  from  Sections  5  and  7  of  the 
Act  of  April  19,  1794,  3  Sm.  L.  143.  Those  sections  provided  that  where 
a  person  died  without  widow  or  lawful  issue  the  father  should  take  the 
real  estate  for  life  and  the  personal  estate  absolutely,  unless  such  estate 
came  to  the  intestate  from  the  part  of  his  mother,  in  which  case  such 
estate  should  descend  as  if  the  intestate  had  survived  his  father.  Section 
7  of  the  Act  of  1794  provided  that  where  an  intestate  left  neither  widow, 


INTESTATE  ACT— SECTIONS  8-9  ..     225 

lawful  issue  nor  father,  but  his  mother  survived,  she  should  take  the  real 
and  personal  estate  in  the  same  way. 

Section  5  of  the  Act  of  1833  was  derived  from  Section  6  of  the  Act 
of  1794  and  Section  5  of  the  Act  of  April  4,  1797,  3  Sm.  L.  296.  Section 
6  of  the  Act  of  1794  provided  that  if  the  intestate  left  neither  widow  nor 
issue  but  left  a  father  and  brothers  and  sisters,  the  brothers  and  sisters 
should  take  the  real  estate  after  the  death  of  the  father,  with  provisions 
for  representation  by  the  issue  of  deceased  brothers  or  sisters ;  but  that 
if  the  intestate  left  no  brothers  or  sisters  nor  their  representatives,  the 
estate  should  go  to  the  father  in  fee  simple,  unless  it  had  descended  from 
the  part  of  the  mother. 

Section  5  of  the  Act  of  1797  provided  that  the  estate  of  a  woman  dying 
intestate  without  leaving  a  husband  should  descend  and  be  divided  in  the 
same  manner  as  the  Act  of  1794  provided  in  the  case  of  a  man  dying  in- 
testate. This  section  further  provided  that  if  any  intestate  died  leaving 
neither  widow,  issue,  father,  brother,  sister,  or  their  representatives,  then 
the  estate  should  be  vested  in  fee  simple  in  the  mother,  unless  it  had 
descended  from  the  part  of  the  father. 

The  Act  of  1683  (iioth  Law)  provided  that  where  an  intestate  left  no 
wife,  child,  brother  or  sister  or  children  of  brothers  or  sisters,  one-half 
of  the  estate  should  go  to  the  parents  and  the  other  half  to  the  next  of  kin. 

The  Act  of  1684  (i72d  Law)  provided  that  in  such  case  one-half  should 
go  to  the  parents  and  one-half  to  the  governor. 

The  Act  of  1693  provided  that  in  such  case  the  whole  estate  should  go 
to  the  parents. 

The  Act  of  1705  (3  Sm.  L.  156  n.)  provided  that  in  the  absence  of  issue 
one-half  of  the  estate  should  go  to  the  wife  and  the  residue  "be  distributed 
equally  to  every  of  the  next  kindred  of  the  intestate,  who  are  in  equal 
degree,  and  those  who  legally  represent  them,"  and  if  there  was  no  wife 
then  the  entire  estate  should  be  distributed  to  such  kindred. 

Where  A  died  intestate,  unmarried  and  without  issue,  leaving  to  survive 
him  as  next  of  kin  and  heirs-at-law  his  father  and  mother,  and  the  father 
died  prior  to  distribution  of  the  estate,  it  was  held,  that  under  Section  8 
of  the  Intestate  Act  of  1917  all  the  personal  estate  passed  to  decedent's 
mother  in  her  own  right.  Manzke's  Est.,  13  Berks  152. 

The  court  relied  on  Frankenfield  v.  Gruver,  7  Barr  448:  "On  the  death 
of  an  intestate  without  issue,  the  third  section  of  the  revised  Act  of  1833 
gives  his  personal  estate  to  his  father  and  mother,  if  living,  jointly  and 
absolutely;  and  this,  like  any  other  joint  chose  in  action  or  chattel,  sur- 
vives to  the  surviving  wife.  Had  the  husband  received  the  assets  in  this 
instance,  he  would  have  made  them  his  own,  and  his  wife  could  have 
claimed  them  only  as  his  administratrix;  but  as  he  died  a  few  days  after 
the  death  of  his  son,  she  is  entitled  in  her  own  right."  See,  also,  Hamm 
v.  Meisenhelter,  9  Watts  349;  Gillan's  Est,  65  Pa.  395-98. 

317.     COLLATERAL  HEIRS. 

SECTION  9.  In  default  of  issue,  father  and  mother,  the  real  and 

personal  estate  of  such  intestate,  not  hereinbefore  given  to  the  sur- 
15 


226  INTESTATE  ACT— SECTION  9  (a) 

viving  spouse,  if  any  there  be,  shall  descend  to  and  be  distributed 
among  the  collateral  heirs  and  kindred  of  such  intestate,  without 
distinction  between  those  of  the  whole  and  those  of  the  half  blood, 
according  to  the  following  rules  and  order  of  succession,  namely, — 

The  introductory  clause  is  altered  so  as  to  abolish  the  distinction  between 
the  whole  and  the  half  blood  in  the  inheritance  of  real  estate  and  to  make 
the  rule  as  to  real  estate  the  same  as  that  provided  by  clause  5  of  Section 
4  of  the  Act  of  1833  in  the  case  of  personal  estate.  Clause  5  therefore 
becomes  unnecessary  and 'is  omitted.  The  language  of  the  introductory 
paragraph  is  further  modified  because  of  the  abolition  of  life  estates  to 
the  widow  and  surviving  husband. 

The  distinction  at  present  existing  in  our  laws  concerning  the  inheritance 
of  real  estate  between  heirs  of  the  whole  blood  and  those  of  the  half  blood 
is  now  admitted  by  all  legal  critics  to  have  been  unsatisfactory  even  in  the 
times  when  it  originated.  Even  Blackstone,  Book  2,  ch.  14,  after  stating 
that  it  is  almost  peculiar  to  the  common  law,  and  attempting  to  justify  or 
rather  explain  it,  admits  that  it  is  certainly  a  very  fine-spun  and  subtle 
nicety.  Sir  Henry  Sumner  Maine,  in  his  Ancient  Law,  expresses  the  opin- 
ion that  nothing  in  the  literature  of  the  history  of  the  law  is  more  curious 
than  Blackstone's  remarks  upon  this  rule  of  feudal  succession.  The  rule 
had  been  entirely  or  partially  abolished  in  very  many  of  the  United  States 
even  in  Chancellor  Kent's  time  (4  Commentaries  404)  ;  and  has  been 
abolished  in  others  since  he  wrote.  In  Pennsylvania,  no  distinction  is 
made  by  the  present  law  between  the  whole  and  half  blood  in  the  distri- 
bution of  personal  property,  and  the  present  Commissioners  are,  as  has 
been  stated,  strongly  of  opinion  that  real  and  personal  property  should 
descend  and  be  distributed  according  to  the  same  uniform  plan. 

318.    BROTHERS  AND  SISTERS. 

(a)  If  such  intestate  shall  leave  brothers  and  sisters,  or  either, 
and  no  nephew  or  niece,  or  child  of  a  deceased  nephew  or  niece, 
being  the  issue  of  a  deceased  brother  or  sister,  the  real  and  personal 
estate  shall  descend  to  and  be  distributed  among  such  brothers  and 
sisters. 

NOTE. — Clauses  (a)  to  (c)  of  this  section  are  derived  from  clauses  i, 
2  and  4  of  Section  4  of  the  Act  of  1833,  2  Purd.  1998. 

Changes  have  also  been  made  to  cover  the  principle  of  representation 
by  grandchildren  of  deceased  brothers  or  sisters  (see  Section  n),  and 
clause  3  of  Section  4  of  the  Act  of  1833  is  replaced  by  the  present  clause 
( d)  ;  but  no  change  is  intended  in  the  existing  law  as  stated  in  Krout's 
Appeal,  60  Pa.  380. 

Section  4  of  the  Act  of  1833  was  derived  from  Sections  6  and  8  of  the 
Act  of  1794,  and  Sections  5  and  7  of  the  Act  of  1797. 

Section  6  of  the  Act  of  1794  provided  that  real  estate  should,  after  the 
death  of  the  father,  descend  to  brothers  and  sisters,  with  provision  for 
representation  by  the  issue  of  deceased  brothers  or  sisters,  the  principle 


INTESTATE  ACT— SECTION  9  (a),  (&),  (O,  (<0  227 

of  representation  not  being  limited  to  the  children  of  brothers  and  sisters. 
Section  8  of  the  Act  of  1794  contained  similar  provisions  for  the  case 
where  the  mother  of  the  intestate  took  a  life  estate. 

Section  n  of  the  Act  of  1794  provided  for  inheritance  by  the  half  blood 
in  the  absence  of  parents  or  brothers  or  sisters  of  the  whole  blood  or  their 
issue,  but  with  a  limitation  to  those  of  the  blood  of  the  first  purchaser. 

Section  5  of  the  Act  of  1797  provided  for  the  inheritance  by  brothers 
and  sisters  in  the  absence  of  widow,  issue  or  parents,  with  provision  for 
representation  by  the  issue  of  deceased  brothers  or  sisters.  Section  7  of 
that  act  provided  for  inheritance  of  the  real  estate  by  brothers  and  sisters 
of  the  whole  blood  to  the  exclusion  of  those  of  the  half  blood,  but  per- 
mitted the  half  blood  to  share  equally  in  the  personal  estate,  and  provided 
for  the  inheritance  of  both  real  and  personal  property  by  brothers  and 
sisters  of  the  half  blood  in  the  absence  of  those  of  the  whole  blood  or 
their  issue,  with  a  limitation  to  those  of  the  blood  of  the  first  purchaser. 

The  Act  of  1683  (noth  Law)  provided  for  inheritance  by  brothers  and 
sisters  or  the  children  of  brothers  or  sisters  in  the  absence  of  wife  or 
child.  No  distinction  was  made  as  to  the  half  blood. 

The  Act  of  1684  (i72d  Law)  was  similar. 

The  Act  of  1705  (3  Sm.  L.  156  n.)  provided  that  in  the  absence  of  issue 
the  widow  should  take  half  the  estate  and  the  residue  should  go  equally 
"to  every  of  the  next  kindred  of  the  intestate,  who  are  in  equal  degree, 
and  those  who  legally  represent  them :  Provided,  That  there  be  no  repre- 
sentatives admitted  amongst  collaterals,  after  brothers  and  sisters  chil- 
dren." In  case  there  was  neither  widow  nor  child,  then  the  next  kindred 
took  the  whole  estate  in  the  same  manner. 

319.  NEPHEWS  AND  NIECES. 

(&)  If  such  intestate  shall  leave  neither  brother  nor  sister,  and 
no  child  of  any  deceased  nephew  or  niece,  being  the  issue  of  a  de- 
ceased brother  or  sister,  but  nephews  or  nieces,  being  the  children 
of  such  deceased  brother  or  sister,  the  real  and  personal  estate  shall 
descend  to  and  be  distributed  among  such  nephews  and  nieces. 

320.  CHILDREN  OF  DECEASED  BROTHERS  OR  SIS- 

TERS TAKING  BY  REPRESENTATION. 

(c)  If  such  intestate  shall  leave  neither  brother  nor  sister,  nor 
any  nephew  or  niece,  being  the  child  of  such  deceased  brother  or 
sister,  but  children  of  deceased  nephews  or  nieces,  the  real  and 
personal  estate  shall  descend  to  and  be  distributed  among  such 
children  of  deceased  nephews  or  nieces. 

321.  DESCENDANTS  OF  BROTHERS  AND  SISTERS. 

(rf)  If  such  intestate  shall  leave  brothers  or  sisters  and  nephews 
or  nieces,  being  children  of  a  deceased  brother  or  sister,  and  chil- 


228  INTESTATE  ACT— SECTIONS  9  (d)-io          * 

dren  of  deceased  nephews  or  nieces,  being  issue  of  deceased  broth- 
ers and  sisters,  or  shall  leave  members  of  any  two  of  these  three 
classes,  the  real  and  personal  estate  shall  descend  to  and  be  dis- 
tributed among  such  brothers  and  sisters,  nephews  and  nieces,  and 
children  of  deceased  nephews  and  nieces,  as  follows,  namely:  . 

Each  brother  and  sister  shall  receive  such  share  as  he  or  she 
would  have  received  if  all  the  brothers  and  sisters  who  died  before 
the  intestate  leaving  children  or  children  of  deceased  children  sur- 
viving the  intestate  had  been  living  at  the  death  of  the  intestate. 

Each  nephew  and  niece,  if  the  intestate  shall  leave  any  brother 
or  sister,  shall  receive  an  equal  portion  of  the  share  which  his  or 
her  parent  would  have  taken  if  then  living,  which  portion  shall  be 
what  he  or  she  would  have  taken  if  all  the  children  of  his  or  her 
parent  who  died  before  the  intestate  leaving  children  surviving  the 
intestate  had  been  living  at  the  death  of  the  intestate ;  but  if  such 
intestate  shall  leave  neither  brother  nor  sister,  the  nephews  and 
nieces  shall  take  per  capita. 

Each  child  of  a  deceased  nephew  or  niece,  whether  the  intestate 
shall  leave  members  of  one  or  both  of  the  other  classes,  shall  re- 
ceive an  equal  portion  of  the  share  which  his  or  her  parent  would 
have  received  if  living  at  the  death  of  the  intestate. 

See  Wightman's  Est,  49  Pa.  C.  C.  614,  30  Dist.  885,  68  P.  L.  J.  833. 

322.    NEXT  OF  KIN. 

SECTION  10.  In  default  of  all  persons  hereinbefore  described, 
the  real  and  personal  estate  of  the  intestate  shall  descend  to  and 
be  distributed  among  the  grandparents  or  descendants  of  deceased 
grandparents  of  such  intestate,  and  in  default  thereof  to  and 
among  the  next  of  kin  to  such  intestate. 

NOTE. — This  is  Section  7  of  the  Act  of  1833,  2  Purd.  1999,  which  was 
derived  from  Section  12  of  the  Act  of  1794.  The  latter  section,  however, 
provided  for  representation  by  the  issue  of  kindred  without  limitation. 

The  explanatory  words  at  the  end,  declaratory  of  the  existing  law,  have 
been  added  for  completeness. 

The  Acts  of  1683,  1684,  1693  and  1705  provided  for  inheritance  by  the 
next  of  kin,  the  Act  of  1705  limiting  the  principle  of  representation,  as 
already  stated,  to  brothers'  and  sisters'  children. 

This  and  Sections  n  and  12  make  no  change  in  the  existing  law,  inas- 
much as  no  suggestions  have  come  to  the  Commissioners  for  their  modi- 
fication, and  none  seem  desirable. 

See  Wightman's  Est.,  49  Pa.  C.  C.  614,  30  Dist.  885,  68  P.  L.  J.  833. 


INTESTATE  ACT— SECTION  10  229 

When  an  intestate's  only  next  of  kin  are  uncles  and  aunts,  they  take 
per  capita  and  not  per  stirpes  under  the  Intestate  Act  of  June  7,  1917, 
P.  L.  429;  and  if  an  uncle  or  aunt  be  deceased,  leaving  children,  such 
children  take  only  by  representation  the  share  their  parent  would  have 
taken  if  living. 

Gest,  J.,  held :  "The  exceptant  relied  upon  Sections  10  and  12  of  the 
Intestate  Act  of  June  7,  1917,  P.  L.  429,  437,  which,  it  appears  from  the 
report  of  the  Commissioners  to  Codify  and  Revise  the  Law  of  Decedents' 
Estates,  were  derived  from  the  preexisting  law.  The  stirpetal  distribu- 
tion, however,  which  is  provided  thereby  applies  only  in  case  the  decedent 
is  survived  by  one  or  more  than  one  grandparent,  and  not  when,  as  in  this 
case,  all  the  grandparents  predeceased  the  intestate.  When  the  next  of 
kin  of  the  intestate  are  all  uncles  and  aunts,  they  take  equally  and  per 
capita,  as  clearly  appears  from  Section  19  of  the  act;  and  if  an  uncle  or 
aunt  be  deceased,  leaving  children,  such  children  take  only  by  representa- 
tion the  share  their  parent  would  have  taken  if  living,  as  is  provided  by 
Section  u."  Brodie's  Est.,  30  Dist.  654. 

Where  the  only  heirs  living  and  able  to  take  are  first  and  second 
cousins,  the  former  take  to  the  exclusion  of  the  latter.  In  so  holding, 
Moschzisker,  C.  J.,  said,  inter  alia: 

"The  question  here  presented  involves  the  right  of  appellants,  who  are 
second  cousins,  to  share  with  first  cousins  in  the  distribution  of  the  estate 
of  an  intestate,  there  being  no  nearer  kindred. 

"The  Act  of  June  7,  1917,  P.  L.  429,  designates  the  persons  who  are 
entitled  to  the  real  and  personal  estate  of  an  intestate  after  the  payment 
of  all  just  debts  and  legal  charges.  The  first  eight  sections  of  the  statute 
determine  the  distributive  shares  of  the  spouse,  issue,  father  and  mother; 
and,  in  absence  of  these,  the  ninth  section  provides  for  a  division  among 
certain  collateral  heirs  and  kindred. 

"In  the  present  case,  as  previously  indicated,  there  is  a  complete  default 
of  all  those  on  whom  the  right  of  distribution  is  bestowed  by  the  first 
nine  sections  of  the  act,  but  there  are  living  three  first  cousins,  children 
of  two  deceased  aunts,  and  two  second  cousins,  who  are  grandchildren 
of  another  deceased  aunt,  all  of  whom  are  descendants  of  one  of  the 
deceased  grandparents  of  the  intestate. 

"Appellants  contend  that  the  inheritance  falls  to  the  first  and  second 
cousins  together,  each  one  of  whom  is  entitled  to  share  'per  capita,'  as  a 
member  of  a  'new  class  of  collateral  heirs/  under  Section  10  of  the  Act 
before  us  for  construction,  which  provides  that,  'in  default  of  all  persons 
herinbefore  described,  the  real  and  personal  estate  of  the  intestate  shall 
descend  to  and  be  distributed  among  the  grandparents  or  descendants  of 
deceased  grandparents  of  such  intestate,  and,  in  default  thereof,  to  and 
among  the  next  of  kin  to  such  intestate.' 

"The  section  just  quoted  is  vague  and  indefinite;  it  fails  either  to  say 
or  suggest  what  possible  groups  of  the  persons  indicated  are  to  inherit, 
how  these  groups  are  to  be  arrived  at,  and  whether  those  composing  them 
take,  as  individuals,  per  stirpes  or  per  capita.  The  section  is  evidently 
intended  as  a  general  one,  which  does  not  attempt  to  mark  out  the  re- 
spective rights  of  the  parties  included  in  it.  To  construe  this  part  of  the 
act  so  as  to  bring  about  the  results  contended  for  by  appellants  would 


230  INTESTATE  ACT— SECTION  10 

lead  to  such  radical  departures  from  the  historical  development  of  our 
intestate  law,  and  the  system  of  representation  there  built  up,  that  one  is 
immediately  led  to  investigate  the  subsequent  provisions  of  the  statute, 
in  order  to  find  the  real  meaning  of  the  part  in  controversy;  and,  for- 
tunately, when  this  is  done,  light  is  seen.  Before  entering  upon  a  con- 
sideration of  these  other  sections,  however,  it  may  be  well  first  to  trace 
briefly  the  progress  of  legislation,  for  much  the  better  part  of  a  century 
past,  bearing  on  the  question  we  have  to  solve.  (Here  follows  a  review 
of  prior  legislation).  ****** 

"With  the  law  in  the  condition  indicated,  the  Intestate  Act  of  1917  was 
passed. 

"While  Section  10  of  this  late  act  provides  that,  in  default  of  other 
and  nearer  kin,  the  estate  of  an  intestate  shall  descend  to  'grandparents 
or  descendants  of  deceased  grandparents,'  it  is  evident  from-  the  other 
parts  of  the  act  that  this  is  intended  in  a  general  sense  and  as  merely 
introductory  to  subsequent,  more  specific  provisions,  particularly  Section 
12.  which  continues  the  existing  rule  laid  down  in  the  Act  of  1887,  supra, 
that,  when  a  living  grandparent  is  nearest  of  kin  to  an  intestate  and,  at 
the  time  of  the  latter's  death,  there  are  also  alive  descendants  of  a  de- 
ceased grandparent,  these  descendants  represent  the  latter  and  share  the 
estate  of  the  intestate  with  the  surviving  grandparent,  in  the  manner 
specifically  provided. 

"When  Sections  10  and  12  are  read  together,  we  see  that  it  never  was 
intended  by  the  former  to  change  the  established  policy  of  our  law  and 
set  up  unlimited  representation  among  collaterals  generally  (this  con- 
clusion is  reinforced  by  a  consideration  of  certain  other  sections,  which 
we  shall  presently  take  up;  nor  was  it  specifically  intended  that,  with 
first  cousins  of  an  intestate  alive,  second  cousins  should  inherit  as  repre- 
senting their  parents,  or  otherwise, — which  parents,  we  may  remark,  would 
be  first  cousins,  to  the  intestate,  in  the  same  class  with  other  first  cousins, 
and,  if  alive,  entitled  to  inherit  with  them, — but  if  we  take  the  words  as 
they  stand  in  Section  10,  without  reference  to  other  parts  of  the  act,  and 
give  them  controlling  significance,  as  appellants  would  have  us  do,  this 
construction,  carried  to  its  logical  conclusion,  would  mean  that  both  first 
and  second  cousins  should  take  at  the  same  time,  and,  since  the  language 
there  employed  does  not  say  the  estate  shall  go  to  such  of  the  descendants 
of  deceased  grandparents  as  may  be  nearest  of  kin  to  the  intestate,  but 
simply — without  limitation — that  it  shall  go  to  'descendants  of  deceased 
grandparents,'  this  might,  in  many  cases,  lead  to  children,  in  effect,  rep- 
resenting their  living  parents,  which,  of  course,  is  contrary  to  the  per 
stirpes  rule:  Shoch  Estate  No.  2,  271  Pa.  165.  Parts  of  the  act  subsequent 
to  Section  10,  however,  forbid  any  such  distribution  as  contended  for  by 
appellants ;  and  thus  we  see  that  the  section  in  questioin  cannot  have  the 
meaning  they  would  give  to  it. 

"While  Section  12,  already  referred  to,  extends  somewhat  the  principle 
of  representation  among  collaterals  taking  thereunder,  yet  the  provisions 
of  that  section  apply  only  where  'one  or  more  than  one  grandparent'  is 
alive  and  entitled  to  take  at  the  death  of  the  intestate;  and  the  extended 
representation  there  provided  for  is  confined  to  'children  or  other  de- 
scendants of  any  deceased  grandparent,'  when,  and  only  when,  they  share 


INTESTATE  ACT— SECTIONS  10-11  231 

the  estate  involved  with  a  surviving  grandparent.  Section  10  merely  intro- 
duces the  idea,  in  a  general  way,  of  who,  in  default  of  the  nearer  kindred 
provided  for  in  the  earlier  sections,  may  inherit;  .it  does  not  undertake 
to  specify  under  what  conditions  the  surviving  grandparents  or  the  de- 
scendants of  dead  grandparents,  respectively,  shall  take,  or  in  what  pro- 
portions; that  is  left  to  Section  12,  which  fully  covers  the  ground.  *  *  * 
"We  agree  with  the  court  below  that  'a  clear  view  of  the  legislative 
intent  is  found  by  linking  together  the  tenth,  eleventh  and  nineteenth 
Sections  of  the  act  (and  considering  the  twelfth).  It  then  appears  that, 
when  there  is  a  lapse  of  all  of  those  in  succession  to  the  intestate  pro- 
vided for  in  the  other  sections,  the  descendants  of  deceased  grandparents 
inherit,  *  *  *  (but  when  there  are)  cousins  german  *  *  *  (being) 
in  the  same  degree  of  consanguinity,  they  take  the  whole  of  the  estate  in 
equal  shares;  and  this  view  of  the  legislative  intent  precludes  a  distribu- 
tion to  the  second  cousins.'  In  short,  when  there  is  no  living  grandparent, 
and  first  cousins  of  the  intestate  survive  him,  second  cousins  also  sur- 
viving, are  not  the  next  of  kin  (nearest  blood  relations),  nor  can  they 
take  by  representation ;  hence  they  do  not  take  at  all.  *  *  *"  Opinion 
of  January  3,  1922  in  Miles'  Est.,  272  Pa.  329. 

323.     LIMITS  OF  REPRESENTATION. 

SECTION  ii.  The  grandchildren  of  brothers  and  sisters  and  the 
children  of  uncles  and  aunts  shall  be  entitled  to  take  by  represen- 
tation the  shares  of  real  and  personal  estate  which  their  parents 
would  have  taken  if  living;  but,  except  as  hereinafter  provided, 
there  shall  be  no  representations  admitted  collaterals  after  the 
grandchildren  of  brothers  and  sisters  and  the  children  of  uncles 
and  aunts. 

NOTE.— This  takes  the  place  of  Section  8  of  the  Act  of  1833,  2  Purd. 
1999,  and  Section  2  of  the  Act  of  April  27,  1855,  P.  L.  368,  2  Purd.  1999, 
with  the  addition,  in  the  last  line,  of  the  words  "grandchildren  of  brothers 
and  sisters  and  the." 

The  Commissioners  who  drafted  the  Act  of  1833  remarked  that  in  Sec- 
tion 8  they  restored  to  the  law  a  provision  which  was  included  in  the  Act 
of  1705  and  continued  in  force  until  the  Act  of  1794,  from  which  it  was 
omitted,  probably  through  inadvertence.  See  notes  to  Sections  9  and  10. 

Section  2  of  the  Act  of  1855  extended  the  principle  of  representation  so 
as  to  include  the  grandchildren  of  deceased  brothers  and  sisters  and  the 
children  of  deceased  uncles  and  aunts.  There  seems  to  be  no  reason  for 
altering  the  law  as  it  now  stands. 

When  an  intestate's  only  next  of  kin  are  uncles  and  aunts,  they  take  per 
capita  and  not  per  stirpes  under  the  Intestate  Act  of  June  7,  1917,  P.  L. 
429;  and  if  an  uncle  or  aunt  be  deceased,  leaving  children,  such  children 
take  only  by  representation  the  share  their  parent  would  have  taken  if 
living. 


232  INTESTATE  ACT— SECTION  n 

GEST,  J.,  held: 

"The  exceptant  relied  upon  Sections  10  and  12  of  the  Intestate  Act  of 
June  7,  1917,  P.  L.  429,  437,  which,  it  appears  from  the  report  of  the 
Commissioners  to  Codify  and  Revise  the  Law  of  Decedents'  Estates,  were 
derived  from  the  preexisting  law.  The  stirpetal  distribution,  however, 
which  is  provided  thereby  applies  only  in  case  the  decedent  is  survived 
by  one  or  more  than  one  grandparent,  and  not  when,  as  in  this  case,  all 
the  grandparents  predeceased  the  intestate.  Where  the  next  of  kin  to  the 
intestate  are  all  uncles  and  aunts,  they  take  equally  and  per  capita,  as 
clearly  appears  from  Section  19  of  the  act;  and  if  an  uncle  or  aunt  be 
deceased,  leaving  children,  such  children  take  only  by  representation  the 
share  their  parent  would  have  taken  if  living,  as  is  provided  by  Section  n. 
We  are,  therefore,  of  opinion  that  the  auditing  judge  was  correct  in  the 
distribution  which  was  made  in  the  adjudication."  Brodie's  Est.,  30 
Dist.  654. 

Where  decedent  died  intestate,  unmarried,  without  issue  and  leaving 
him  to  survive  neither  father,  mother,  brothers,  sisters,  nephews  or  nieces, 
and  his  nearest  collateral  relatives  were  first  cousins,  the  children  of 
deceased  uncles  and  aunts;  and  distribution  was  made  to  the  eight  first 
cousins  in  equal  shares,  Miller,  P.  J.,  held,  in  dismissing  exceptions : 

"This  section  (Sec.  n,  su,pra)  is  a  restatement  of  Section  8  of  the 
Intestate  Act  of  1833  and  of  Section  2  of  the  Act  of  April  27,  1855.  These 
two  acts  were  construed  as  constituting  an  additional  class  of  collateral 
heirs  and  fixed  the  right  of  inheritance  by  representation  (Hays'  Appeal, 
89  Pa.  256),  but  under  the  Act  of  June  30,  1885,  P.  L.  251,  this  con- 
struction could  no  longer  be  followed.  This  act  provides,  Section  i,  'that 
whenever  by  the  intestate  laws  of  this  Commonwealth  it  is  directed  that 
the  real  and  personal  estate  shall  descend  to,  and  be  distributed  among 
several  persons,  whether  lineal  or  collateral  heirs  or  kindred  standing  in 
the  same  degree  of  consanguinity  to  the  intestate,  if  there  shall  be  only 
one  of  such  degree  he  shall  take  the  whole  of  such  estate,  and  if  there 
shall  be  more  than  one  they  shall  take  in  equal  shares,  and  if  real  estate 
they  shall  hold  the  same  as  tenants  in  common.' 

"It  is  clear  that  the  reenactment  of  Section  19,  with  the  interpretation 
put  upon  the  Act  of  '85  as  amending  the  Act  of  '55,  shown  in  the 
cases  cited,  provides  that  this  distribution  must  be  per  capita  among 
the  eight  first  cousins,  they  being  all  of  the  same  class  and  in  the  same 
degree  of  consanguinity  from  the  intestate.  The  opposition  to  this  view 
is  that,  when  the  Legislature  in  1917  reenacted  on  the  same  day  and  at 
the  same  time  Section  n  and  Section  18  and  thus  seemed  to  put  the 
provisions  of  Section  n  back  to  the  place  it  occupied  prior  to  the  Act  of 
'55,  and  the  decisions  thereunder  in  Cremer's  Estate,  156  Pa.  40,  this  re- 
stored the  rule  in  Hay's  Appeal,  89  Pa.  256,  and  that  distribution  in  the 
case  at  bar  must  be  by  representation. 

"The  question  may  well  be  raised  touching  the  language  of  Section  n, 
which  reenacted  the  old  provisions  already  referred  to;  it  puts  the 
grandchildren  of  brothers  and  sisters  and  the  children  of  uncles  and 
aunts  into  a  class  who  shall  be  entitled  to  take  by  representation.  In  this 
connection  it  must  be  observed  that  Section  10  of  the  Intestate  Act  of 
1917  provides  'that  in  default  of  all  persons  hereinbefore  described  the 


INTESTATE  ACT— SECTION  11  233 

real  and  personal  estate  of  the  intestate  shall  descend  to  and  be  dis- 
tributed among  the  grandparents  or  descendants  of  deceased  grandparents.' 
It  seems  to  be  manifest  from  the  language  of  this  section  that  grand- 
children of  brothers  and  sisters  are  provided  for  in  Section  9  of  the 
same  act  and  would  take  exclusive  of  the  children  of  uncles  and  aunts, 
and  that,  therefore,  the  suggestion  made  that  Section  n  applies  only 
where  grandchildren  of  brothers  and  sisters  and  children  of  deceased 
brothers  and  sisters,  or  uncles  and  aunts  and  children  of  deceased  uncles 
and  aunts,  survive  the  intestate,  is  not  manifest,  since  that  would  read 
into  the  section  language  not  found  there. 

"To  hold  that  Section  n  reenacts  the  law  as  construed  under  Hays' 
Appeal  repealing  the  effect  of  Section  19,  which,  as  stated  in  Cremer's 
Estate,  harmonizes  the  entire  intestate  system  when  the  parties  entitled  to 
take  are  in  the  same  degree  of  consanguinity,  cannot  have  been  the  intent 
of  the  legislature,  but  that  the  intent  was  not  to  change  the  law,  as  con- 
strued by  the  later  decisions  of  the  appellate  courts  in  passing  on  the  Acts 
of  1855  and  1885."  Wightman's  Est.,  49  Pa.  C.  C.  614,  30  Dist.  885,  68 
P.  L.  J.  833- 

In  discussing  the  rights  of  the  second  cousins  as  against  first  cousins  as 
affected  by  this  section  of  the  act,  Moschzisker,  C.  J.,  said  inter  alia, — 

"Section  II  reenacts  the  rule  provided  in  earlier  legislation,  that,  'the 
grandchildren  of  brothers  and  sisters  and  the  children  of  uncles  and 
aunts  shall  be  entitled  to  take  by  representation  the  shares  *  *  *  * 
which  their  parents  would  have  taken  if  living;'  but  it  expressly  states 
that,  'except  as  hereinafter  provided,  there  shall  be  no  (other)  repre- 
sentation admitted  among  collaterals;'  the  words  'as  hereinafter  pro- 
vided' evidently  having  application  to  the  representation  among  descendants 
of  a  dead  grandparent  referred  to  in  Section  12,  and  before  discussed. 

"The  part  of  the  act  now  under  discussion,  Section  II,  apparently  deals 
with  the  phase  of  the  principle  of  representation  which  determines  who  are 
entitled  to  take,  and  not  with  its  other  phase, — how  division  shall  be 
made  among  those  so  entitled;  the  latter  aspect  of  the  matter  seems  to 
be  provided  for  by  Section  19.  *  *  *  * 

"The  provision  (of  Section  19)  that  lineal  or  collateral  heirs  standing 
in  the  same  degree  of  consanguinity  to  the  intestate  shall  take  in  equal 
shares,  when  read  with  the  provision  in  Section  II,  that  'there  shall  be  no 
representation  admitted  among  collaterals  after  the  grandchildren  of 
brothers  and  sisters  and  children  of  uncles  and  aunts,'  shows  plainly  that 
the  tenth  section,  depended  on  by  appellants,  cannot  be  given  the  effect  of 
setting  up  unlimited  representation  among  collaterals ;  nor  can  it  be  con- 
strued to  set  up  a  new  class  of  collateral  heirs,  who,  although  of  different 
degrees,  all  being  'descendants  of  deceased  grandparents  of  the  intestate,' 
would  take  equally  the  estate  of  the  latter,  as  contended  by  these  second 
cousins, — such  a  scheme  of  distribution  is  so  unusual  in  our  law  as  to 
require  plain  and  unequivocal  language  to  establish  it  (Whitaker's  Estate, 
175  Pa.  139,  143),  which  we  do  not  find  here.  *  *  *"  Opinion  of  Jan- 
uary 3,  1922,  in  Miles'  Est.,  272  Pa.  329. 


234  INTESTATE  ACT— SECTION  12  (a) 

324.  GRANDPARENTS  AND  ISSUE  OF  DECEASED 
GRANDPARENTS. 

SECTION  12.  If  the  next  of  kin  of  an  intestate,  entitled  to  take 
under  the  provisions  of  this  act,  shall  be  one  or  more  than  one 
grandparent  of  such  intestate,  and  there  shall  be  living,  at  the 
time  of  the  decease  of  such  intestate,  children  or  other  descend- 
ants of  any  deceased  grandparent,  then  the  children  or  other 
descendants  of  any  such  deceased  grandparent  shall  represent  the 
grandparent  so  deceased,  and  shall  take  the  share  of  real  or 
personal  estate  to  which  such  deceased  grandparent  would  be 
entitled  if  living. 

The  issue  of  any  such  deceased  grandparent  shall  take  accord- 
ing to  the  following  rules  of  succession,  namely, — 

When  an  intestate's  only  next  of  kin  are  uncles  and  aunts,  they  take 
per  capita  and  not  per  stirpes  under  the  Intestate  Act  of  June  7,  1917, 
P.  L.  429;  and  if  an  uncle  or  aunt  be  deceased,  leaving  children,  such 
children  take  only  by  representation  the  share  their  parent  would  have 
taken  if  living. 

GEST,  J.,  held: 

"The  exceptant  relied  upon  Sections  10  and  12  of  the  Intestate  Act  of 
June  7,  1917,  P.  L.  429,  437,  which,  it  appears  from  the  report  of  the 
Commissioners  to  Codify  and  Revise  the  Law  of  Decedents'  Estates,  were 
derived  from  the  preexisting  law.  The  stirpetal  distribution,  however, 
which  is  provided  thereby  applies  only  in  case  the  decedent  is  survived  by 
one  or  more  than  one  grandparent,  and  not  when,  as  in  this  case,  all  the 
grandparents  predeceased  the  intestate.  Where  the  next  of  kin  of  the 
intestate  are  all  uncles  and  aunts,  they  take  equally  and  per  capita,  as 
clearly  appears  from  Section  19  of  the  act;  and  if  an  uncle  or  aunt  be 
deceased,  leaving  children,  such  children  take  only  by  representation  the 
share  their  parent  would  have  taken  if  living,  as  is  provided  by  Section  n. 
Brodie's  Est,  30  Dist.  654. 

See  opinion  of  Moschzisker,  C.  J.,  January  3,  1922,  in  Miles'  Est.,  272 
Pa.  329- 

325.     CHILDREN  OF  DECEASED  GRANDPARENT. 

(a)  If  there  be  only  children  of  such  deceased  grandparent, 
the  share  of  such  deceased  grandparent  shall  descend  to  and  be 
distributed  among  such  children. 

NOTE. — The  clauses  of  this  section  are  copied  from  clauses  i  to  iv  of 
Section  i  of  the  Act  of  May  25,  1887,  P-  L.  261,  2  Purd.  1999. 

It  is  stated  in  Whitaker's  Estate,  175  Pa.  139,  142,  that  the  Act  of  1887 
was  passed  to  meet  the  decision  in  McDowell  v.  Addams,  45  Pa.  430, 
where  it  was  held  that  a  living  grandparent  took  to  the  exclusion  of  the 
descendants  of  a  deceased  one. 


INTESTATE  ACT— SECTION  12  (&),  (c),  (d)  i,  2  23$ 

326.  GRANDCHILDREN  OF  DECEASED  GRAND- 

PARENTS. 

(&)  If  there  be  grandchildren  of  such  deceased  grandparent 
and  no  other  descendants,  being  children  of  a  deceased  grandchild, 
and  no  child,  the  share  of  such  deceased  grandparent  shall  de- 
scend to  and  be  distributed  among  such  grandchildren. 

The  only  change  made  from  the  Act  of  1887  is  to  add,  in  clause  (&), 
the  words  "being  children  of  a  deceased  grandchild"  after  "no  other 
descendants."  This  is  the  evident  meaning  of  the  clause,  and  the  words 
are  inserted  for  the  sake  of  clearness. 

327.  DESCENDANTS  OF  DECEASED  GRANDPARENT 

IN  SAME  DEGREE  OF  CONSANGUINITY. 

(c)  If  there  be  descendants  of  such  deceased  grandparent  in 
any  other  degree  however  remote  from  him,  and  all  in  the  same 
degree   of   consanguinity  to  him,  the   share   of   such   deceased 
grandparent   shall   descend   to   and  be   distributed  among  such 
descendants. 

328.  DESCENDANTS  OF  DECEASED  GRANDPARENT 

IN  DIFFERENT  DEGREES  OF  CONSANGUIN- 
ITY. 

(d)  If  there  be  descendants  of  such  deceased  grandparent  in 
different  degrees  of  consanguinity  to  him,  the  more  remote  of 
them  being  the  issue  of  a  deceased  child,  grandchild  or  other 
descendant,  the  share  of  such  deceased  grandparent  shall  descend 
to  and  be  distributed  among  them  as  follows,  namely, — 

329.  CHILDREN  OF  DECEASED  GRANDPARENT. 

1.  Each  of  the  children  of  such  deceased  grandparent  shall 
receive  such  share  as  such  child  would  have  received  if  all  the 
children  of  such  deceased  grandparent,  who  shall  then  be  dead 
leaving  issue,  had  been  living  at  the  death  of  the  intestate. 

330.  GRANDCHILDREN     OF     DECEASED     GRAND- 

PARENT. 

2.  Each  of  the  grandchildren,  if  there  shall  be  no  children  of 
such  deceased  grandparent,  in  like  manner  shall   receive   such 
share  as  he  or  she  would  have  received  if  all  the  other  grand- 
children, who  shall  then  be  dead,  leaving  issue,  had  been  living 
at  the  death  of  the  intestate,  and  so  in  like  manner  to  the  re- 
motest degree. 


236  INTESTATE  ACT— SECTIONS  12  (d)  3-13 

331.  ISSUE  TAKING  BY  REPRESENTATION. 

3.  In  every  such  case,  the  issue  of  such  deceased  child,  grand- 
child or  other  descendant  of  such  deceased  grandparent  shall 
take,  by  representation  of  their  parents  respectively,  such  share 
only  as  would  have  descended  to  such  parents,  if  they  had. been 
living  at  the  death  of  the  intestate. 

NOTE. — This  provision  of  the  Act  of  1887  introduced  the  principle  of 
unlimited  representation,  not  in  harmony  with  the  Act  of  1855  (Section 
324  supra)  ;  but  it  has  been  in  effect  for  thirty  years  and  so  far  as  the 
Commissioners  are  advised,  has  proved  satisfactory.  Hence,  they  do  not 
feel  justified  in  recommending  a  change. 

332.  RULE  AS  TO  BLOOD  OF  FIRST  TAKER  ABRO- 

GATED. 

SECTION  13.  In  all  cases  where,  under  the  provisions  of  this 
act,  the  real  estate  shall  descend  to  and  the  personal  estate  shall 
be  distributed  among  the  next  of  kin  of  an  intestate,  the  real  as 
well  as  the  personal  estate  shall  pass  to  and  be  enjoyed  by  such 
next  of  kin,  without  regard  to  the  ancestor  or  other  relation 
from  whom  such  estate  may  have  come,  it  being  the  true  intent 
and  meaning  of  this  act  that  the  rule  excluding  from  the  inherit- 
ance of  real  estate  persons  not  of  the  blood  of  the  ancestor  or 
other  relation  from  whom  such  real  estate  descended,  or  by  whom 
it  was  given  or  devised  to  the  intestate,  be  abrogated,  and  that 
the  heir  at  common  law  shall  not  take,  in  any  case,  to  the  exclu- 
sion of  other  heirs  and  kindred  standing  in  the  same  degree  of 
consanguinity  with  him  to  the  intestate. 

NOTE. — This  is  Section  n  of  the  Act  of  1833,  2  Purd.  2002,  amended  so 
as  to  apply  to  all  cases  and  not  merely  to  cases  "not  expressly  provided 
for"  by  the  act.  It  involves  the  repeal  of  Section  9  of  the  Act  of  1833,  2 
Purd.  2000-1,  and  of  Section  2  of  the  Act  of  May  25,  1887,  P.  L.  261,  2 
Purd.  2000,  which  reenacted  the  provisions  of  Section  9  of  the  Act  of 
1833  in  connection  with  the  cases  provided  for  by  the  Act  of  1887,  as  to 
which  see  the  last  preceding  note. 

The  Act  of  1794,  as  already  noted,  expressly  imposed  the  rule  as  to  the 
blood  of  the  first  purchaser  in  certain  cases,  namely,  those  of  inheritance 
by  the  father  or  mother  or  by  the  half  blood ;  and  the  common  law  rule 
seems  to  have  been  applied  generally  before  the  Act  of  1833  (see  Bevan  v. 
Taylor,  7  S.  &  R.  397;  overruling  Walker  v.  Smith,  3  Yeates  480). 
There  is  no  reference  to  the  rule  in  any  of  the  earlier  acts. 

The  common  law  rule  as  to  inheritance  from  the  blood  of  the  first 
purchaser  was  infringed  upon  by  the  Act  of  1833,  but  still  exists  in  other 
cases  where  its  effect  is  generally  entirely  arbitrary ;  and  the  Commis- 
sioners recommend  its  total  abolition.  This  change  is  also  in  accordance 


INTESTATE  ACT— SECTIONS  13-14-15  (»)  237 

with  the  general  principle  of  this  revision,  that  no  distinction  should  be 
made  in  the  intestate  act  between  real  and  personal  estates. 


See  Miller  v.  Brown,  49  Pa.  C.  C.  332. 


333.  FOREGOING    PROVISIONS    APPLY    ONLY    TO 

LEGITIMATES. 

SECTION  14.  Except  as  otherwise  provided  in  Section  15,  the 
foregoing  provisions  of  this  act  relative  to  descent  and  distribu- 
tion of  real  and  personal  estate  among  the  heirs  and  next  of  kin 
of  intestates  shall  be  construed  to  mean  such  persons  only  as  may 
have  been  born  in  lawful  wedlock. 

NOTE. — This  is  Section  17  of  the  Act  of  1833,  2  Purd.  2003,  except  for 
the  insertion  of  the  words  from  "except"  to  "foregoing,"  and  the  sub- 
stitution of  "next  of  kin"  for  "descendants  and  collateral  relations."  The 
rights  of  illegitimates  are  treated  in  the  next  section ;  the  sections  after 
Section  15  apply  to  illegitimates  as  well  as  legitimates. 

The  Act  of  1794  and  the  earlier  acts  contain  no  reference  to  illegiti- 
mates, but  mention  "children"  and  "lawful  issue." 

334.  ILLEGITIMATES,— INHERITANCE  AS  BETWEEN 

MOTHER,  GRANDPARENTS  AND  CHILD. 

SECTION  15  (a)  The  mother  of  an  illegitimate  child,  her  heirs 
and  next  of  kin,  the  maternal  grandfather  and  grandmother  of 
said  illegitimate  child,  and  said  illegitimate  child,  its  heirs  and 
next  of  kin,  shall  have  capacity  to  take  or  inherit  from  each  other 
personal  estate  as  next  of  kin,  and  real  estate  as  heirs,  under  the 
foregoing  provisions  of  this  act,  in  the  same  manner  and  to  the 
same  extent  as  if  said  child  or  children  had  been  born  in  lawful 
wedlock. 

NOTE. — This  is  Section  2  of  the  Act  of  July  10,  1901,  P.  L.  639,  2  Purd. 
2005-6,  changing  "legal  representatives"  to  "next  of  kin"  in  two  places, 
substituting  "the  foregoing  provisions  of  this  act"  for  "the  intestate  laws 
of  this  Commonwealth,"  omitting,  in  lines  3  and  4,  the  words  "or  children" 
before  "its,"  and  "or  their"  after  "its,"  and  in  line  6,  "in  fee  simple,  or 
otherwise,"  after  "heirs,"  and  adding  "grandfather." 

The  Act  of  April  27,  1855,  P.  L,.  368,  Section  3,  gave  an  illegitimate 
child  and  its  mother  capacity  to  inherit  from  one  another. 

The  Act  of  June  5,  1883,  P.  L.  88,  Section  I,  gave  illegitimate  children 
of  the  same  mother  capacity  to  inherit  personal  property  from  one  another. 

Section  3  of  the  Act  of  April  27,  1855,  supra,  was  amended  by  the  Act 
of  June  14,  1897,  P.  L.  142,  Section  i,  2  Purd.  2004-5,  so  as  to  enable 
illegitimate  children  and  their  issue  and  their  mother  and  grandmother  to 
take  or  inherit  from  each  other  personal  and  real  estate,  and  as  regards 


238  INTESTATE  ACT-SEcriON  15  (a),  (b),  (c) 

real  or  personal  estate  so  taken  and  inherited,  to  transmit  the  same  accord- 
ing to  the  intestate  laws  of  the  state. 

The  "grandmother"  included  in  the  Act  of  1807,  is  presumably,  the 
maternal  grandmother,  although  the  act  does  not  say  so. 

The  Act  of  June  10,  1901,  P.  L.  S5i,  Section  i,  2  Purd.  2005,  provides 
that  all  children  of  the  same  mother,  whether  legitimate  or  illegitimate 
dying  without  leaving  children  or  others  entitled  to  inherit  under  the 
existing  laws,  shall  have  capacity  to  inherit  from  each  other,  to  the  ex- 
clusion of  the  grandmother  of  said  illegitimate  child  or  children.  This  is 
covered  by  clause  (b)  of  the  present  section  of  the  new  act. 

The  new  draft  does  not  include  the  provision  of  Section  i  of  the  Act 
of  1897,  and  of  Section  i  of  the  Act  of  July  10,  1901,  that  "illegitimate 
children  shall  take  and  be  known  by  the  name  of  their  mother,"  and  the 
further  provisions  of  the  latter  section  are  also  omitted  as  not  within 
the  scope  of  an  intestate  act. 

This  will  be  covered  by  repealing  Section  i  of  the  Act  of  1897  but  allow- 
ing Section  i  of  the  Act  of  July  10,  1901,  2  Purd.  2005,  to  stand,  although 
the  other  sections  of  that  act  should  be  repealed  since  their  substance  is 
contained  in  the  new  act. 

"In  this  and  other  states  the  rigors  of  the  common  law  rule  have  been 
mitigated  by  statutes,  increasing  the  rights  of  illegitimates,  especially  in 
reference  to  inheritance  from  and  through  their  mothers.  Section  15  of 
the  'Intestate  Act'  of  June  7,  1917,  P.  L.  439,  which  is  a  substitute  for 
former  legislation,  contains  a  summary  of  the  present  statutory  law  on  this 
subject  in  Pennsylvania."  Wanner,  P.  J.  in  Commonwealth  v.  Gross,  35 
York  93. 

335.  INHERITANCE      AS      BETWEEN      CHILDREN, 

LEGITIMATE  AND  ILLEGITIMATE. 

(b)  Every  illegitimate  child  shall  be  considered  as  a  brother 
or  sister  to  every  other  child  of  its  mother,  legitimate  or  illegiti- 
mate. 

NOTE. — This  is  Section  3  of  the  Act  of  July  10,  1901,  2  Purd.  2006, 
altered  by  changing  "each"  to  "every,"  inserting  the  words  "a  brother  or 
sister,"  omitting  the  words  "of  the  half  blood,"  since  the  distinction 
between  the  whole  and  half  blood  is  abolished  by  the  new  act,  and  omit- 
ting the  remainder  of  the  section,  beginning  "notwithstanding  any  repute 
or  conviction."  Neither  the  meaning  nor  the  purpose  of  that  part  of  the 
section  is  apparent. 

336.  LEGITIMATION  AS  TO  MOTHER,  BUT  NOT  AS 

TO  FATHER. 

(c)  The  intent  of  this  section  is  to  legitimate  an  illegitimate 
child  only  so  far  as  is  provided  by  clauses  (a)  and  (b}  hereof. 


INTESTATE  ACT— SECTIONS  15  (c),  (rf)-i6-  (a)  239 

This  section  is  not  intended  to  change  the  existing  law  with  regard 
to  the  father  of  such  a  child,  and  his  heirs  and  next  of  kin. 

NOTE. — This  is  Section  4  of  the  Act  of  July  10,  1901,  as  amended  by 
Section  i  of  the  Act  of  March  26,  1903,  P.  L.  70,  2  Purd.  2006,  altered 
by  omitting  after  "illegitimate  child"  the  words,  "or  its  heirs,  as  to  its 
mother  and  her  heirs,"  and  inserting  "only  so  far  as  is  provided  in  clauses 
(o)  and  (&)  of  this  section;"  by  substituting  "and  his"  for  "or  their 
respective,"  and  "next  of  kin"  for  "legal  representatives,"  and  by  omitting 
the  proviso  making  the  act  applicable  to  pending  cases,  as  not  being 
in  harmony  with  the  general  policy  of  the  present  act,  namely,  that  it 
shall  apply  only  to  the  estates  of  persons  dying  on  or  after  a  certain  day, 
subsequent  to  the  approval  of  the  act. 

337.  LEGITIMATION  BY  MARRIAGE  OF  PARENTS. 

(d)  In  any  and  every  case  where  the  father  and  mother  of  an 
illegitimate  child  or  children  shall  enter  into  the  bonds  of  lawful 
wedlock,  or  shall  heretofore  have  entered  into  the  bonds  of  lawful 
wedlock,  such  child  or  children  shall  be  legitimated  for  all  purposes 
of  inheritance  by,  from  or  through  such  child  or  children,  under 
the  provisions  of  this  act,  as  if  he  or  they  had  been  born  during 
the  wedlock  of  his  or  their  parents. 

NOTE. — This  is  founded  on  Section  i  of  the  Act  of  May  14,  1857, 
P.  L,.  507,  3  Purd.  2445,  modified  so  as  to  be  limited  to  the  purposes  of 
the  intestate  law,  so  as  to  omit  the  requirement  of  cohabitation,  and  so 
as  to  extend  that  section  to  include  inheritance,  from  or  through  such 
legitimated  children.  The  provision  that  the  act  shall  apply  to  past  cases 
is  in  accord  with  the  Act  of  April  21,  1858,  P.  L.  413,  Section  i,  3  Purd. 
2446,  which  provided  that  the  Act  of  1857  should  be  taken  to  apply  to 
all  cases  within  its  terms  prior  to  its  date  as  well  as  those  subsequent 
thereto. 

The  Commissioners  recommend  the  omission  of  the  requirement  of 
cohabitation,  as  contained  in  the  present  law.  As  this  has  been  construed 
by  the  courts:  Clauer's  Appeal,  n  W.  N.  C.  427;  Agnew's  Estate,  29 
W.  N.  C.  520,  the  cohabitation  need  be  only  nominal;  in  cases  of  "forced" 
marriages,  real  cohabitation  is  rarely  possible  and  sometimes  very  in- 
advisable. 

338.  ADOPTED  CHILDREN,— INHERITANCE  AS  BE- 

TWEEN  ADOPTED    PERSONS   AND    ADOPT- 
ING PARENT. 

SECTION  16.  (a)  Any  minor  or  adult  person  adopted  according 
to  law  and  tEe  adopting  parent  or  parents  shall,  respectively,  in- 
herit and  take  by  devolution  from  and  through  each  other  per- 
sonal estate  as  next  of  kin  a.ncl  real  estate  as  heirs,  under  the 


240  INTESTATE  ACT— SECTION  16  (a),  (6) 

provisions  of  this  act,  as  fully  as  if  the  person  adopted  had  been 
born  a  lawful  child  of  the  adopting  parent  or  parents. 

NOTE.— This  is  founded  on  Section  i  of  the  Act  of  April  13,  1887,  P.  L. 
53,  2  Purd.  2006,  and  upon  the  provisions  as  to  inheritance  contained  in 
the  various  acts  relating  to  adoption. 

This  and  the  other  clause  of  the  present  section  are  intended  to  cover 
the  entire  subject  of  inheritance  by  and  from  adopted  persons  and  seem 
to  make  it  necessary  to  repeal  the  existing  adoption  acts,  so  far  only,  how- 
ever, as  they  relate  to  inheritance. 

The  Act  of  May  9,  1889,  P.  L-  168,  Section  I,  i  Purd.  280-281,  relating 
to  adoption  of  adults,  provides  that  the  adopted  person  shall  inherit  only 
as  one  of  the  children  of  the  adopting  parent,  and  that  such  adopted  child 
and  the  lawful  children  of  the  adopting  parent  shall  inherit  from  and 
through  each  other  as  if  all  had  been  lawful  children  of  the  same  parents. 

Section  I  of  the  Act  of  April  22,  1905,  P.  L.  297,  5  Purd.  5227,  amending 
Section  i  of  the  Act  of  May  19,  1887,  P.  L.  125,  I  Purd.  279,  which 
amended  Section  7  of  the  Act  of  May  4,  1855,  P.  L.  431,  contains  the 
same  provision. 

Section  3  of  the  Act  of  June  I,  1911,  P.  L.  539,  5  Purd.  5228,  relating 
to  adoption  of  adults,  provides  that  the  adopted  person  and  the  adopting 
parent  shall  inherit  and  take  from  and  through  each  other  as  fully  as  if 
the  person  adopted  had  been  born  the  lawful  child  of  the  adopting  parent 
Section  4  of  the  same  act  provides  that  the  adopted  person  and  other 
children  of  the  adopting  parent,  whether  natural  or  adopted,  shall  inherit 
from  and  through  each  other.  This  act  repeals  the  Act  of  1889  above 
cited. 

The  Act  of  May  28,  1915,  P.  L-  580,  5  Purd.  5228,  further  amends 
Section  7  of  the  Act  of  May  4,  1855,  above  cited,  by  adding  the  provision 
that  the  adopting  parent  and  the  adopted  child  shall  inherit  and  take  from 
and  through  each  other  as  fully  as  if  the  person  adopted  had  been  born  a 
lawful  child  of  the  adopting  parent 

See  Moore's  Est,  30  Dist  152;   68  P.  L.  J.  670;    15  Del.  367. 

339.  INHERITANCE  AS  BETWEEN  ADOPTED  PER- 
SON AND  ADOPTED  RELATIVES;  NATURAL 
KIN  OF  ADOPTED  PERSON  EXCLUDED. 

(fr)  The  person  adopted  shall,  for  all  purposes  of  inheritance 
and  taking  by  devolution,  be  a  member  of  the  family  of  the 
adopting  parent  or  parents.  The  adoptive  relatives  of  the  person 
adopted  shall  be  entitled  to  inherit  and  take  from  and  through 
such  person  to  the  exclusion  of  his  or  her  natural  parents,  grand- 
parents and  collateral  relatives,  but  the  surviving  spouse  of  such 
adopted  person  and  the  children  and  descendants  of  such  adopted 
person  shall  have  all  his,  her  and  their  respective  rights  under 
this  act.  Adopted  persons  shall  not  be  entitled  to  inherit  or  take 


INTESTATE  ACT— SECTIONS  16  (&)-i;  (a),  (6)  241 

from  or  through  their  natural  parents,  grandparents  or  collateral 
relatives,  but  each  adopted  person  shall  have  all  his  or  her  rights 
under  this  act  in  the  estates  of  his  or  her  spouse,  children  and 
descendants. 

NOTE. — This  is  founded  on  Section  4  of  the  Act  of  June  I,  1911,  P.  L. 
539,  5  Purd.  5229,  with  an  extension  of  its  provisions  so  as  to  make  the 
adopted  person  for  all  purposes  of  inheritance  a  member  of  the  family 
of  the  adopting  parent. 

This  seems  to  be  in  accordance  with  the  policy  indicated  by  Section  i 
of  the  Act  of  April  13,  1887,  P.  L.  53,  2  Purd.  2006,  which  provides  that 
"the  adopting  parents  and  their  lawful  heir  and  kindred  shall  be  treated 
and  shall  inherit  from  such  adopted  child,  according  to  the  intestate 
laws  of  this  commonwealth,  the  same  as  though  such  adopted  child  were 
the  natural  child  and  heir-at-law  of  such  adopting  parents,  to  the  exclusion 
of  the  natural  parents,  kindred  and  heirs-at-law  of  such  adopted  child, 
reserving  to  the  husband  and  wife  of  such  adopted  child  all  his  or  her 
respective  rights,  under  the  intestate  laws ;  *  *  *  Provided,  however, 
That  this  act  shall  only  apply  to  such  property  as  the  adopted  child  shall 
have  inherited  or  derived  from  the  adopting  parents  or  their  kindred." 

The  proviso  is  omitted  in  accordance  with  what  appears  to  be  the  legis- 
lative policy  in  later  statutes. 

See  Moore's  Est.,  30  Dist.  152;   68  P.  L.  J.  670;    15  Del.  367. 

340.  SURVIVING  SPOUSE  AND  NO  KNOWN  HEIRS 

OR      KINDRED,— RIGHTS      OF      SURVIVING 
SPOUSE. 

SECTION  17.  (a)  In  default  of  known  heirs  or  kindred,  com- 
petent as  aforesaid,  the  real  estate  of  such  intestate  shall  be  vested 
in  the  surviving  spouse  of  such  intestate,  if  any,  and  the  surviving 
spouse  shall  be  entitled  to  the  whole  of  the  personal  estate. 

NOTE. — This  is  Section  10  of  the  Act  of  1833,  2  Purd.  2001,  substituting 
"surviving  spouse"  for  "widow  or  surviving  husband,"  and  omitting  the 
description  of  the  estate,  which  is  superfluous  in  view  of  Section  18  of  the 
new  act. 

Section  10  of  the  Act  of  1833  was  copied  from  the  Act  of  January  21, 
1819,  P.  L,.  25  (7  Sm.  L.  142.) 

Neither  the  Act  of  April  19,  1794,  3  Sm.  I/.  143,  nor  the  Act  of  April  4, 
J797,  3  Sm.  L,.  296,  contained  any  provision  on  this  subject,  nor  did  any 
such  provision  appear  prior  to  the  Act  of  1819. 

341.  PROCEDURE. 

(&)  If  any  person  shall  die,  or  has  died  intestate,  leaving  a  sur- 
viving spouse  and  no  known  heirs  or  kindred,  such  surviving 
spouse,  his  or  her  heirs  or  legal  representatives,  may,  at  any  time 
16 


242  INTESTATE  ACT— SECTION  17  (&) 

after  the  expiration  of  one  year  from  the  death  of  such  intestate, 
and  after  final  settlement  of  the  administration  accounts  of  such 
intestate,  present  a  petition  to  the  orphans'  court  of  the  county 
wherein  any  real  estate  of  such  intestate  may  lie,  or,  in  the  case 
of  personal  estate,  to  the  orphans'  court  having  jurisdiction  of 
said  administration  accounts,  setting  forth  that  the  said  intestate 
died  leaving  no  known  heirs  or  kindred  and  seized  or  possessed 
of  real  or  personal  estate,  which  by  virtue  of  this  act,  vested  in 
such  surviving  spouse.  Such  petition  shall  be  verified  by  the 
oath  or  affirmation  of  the  party  petitioning,  or  of  some  other 
person  knowing  the  facts. 

Upon  the  presentation  of  said  petition,  the  said  court  shall 
grant  a  citation  to  all  the  heirs  or  other  persons  interested  or 
claiming  any  interest  in  said  estate,  to  appear  in  said  court  at 
some  time  certain  and  show  cause  why  a  decree  should  not  be 
made,  ordering  and  directing,  in  the  case  of  real  estate,  that  the 
title  thereto  be  adjudged  to  be  in  such  surviving  spouse,  his  or 
her  heirs,  or,  in  the  case  of  personal  estate,  that  the  administrator 
or  administrators  of  the  estate  of  said  intestate  shall  pay  over  to 
such  surviving  spouse,  his  or  her  legal  representatives,  the  balance 
of  such  intestate's  estate  in  his  or  their  hands.  Notice  of  such 
citation  shall  be  published  for  such  length  of  time  and  in  such 
manner  as  the  court  in  its  discretion  shall  think  proper. 

If,  upon  the  return  of  the  citation  and  due  proof  of  publica- 
tion thereof,  agreeably  to  the  order  of  the  court,  no  heirs  or 
kindred  claiming  said  estate  shall  appear,  nor  any  good  cause 
be  shown  to  the  contrary,  the  court  shall  order  and  decree  as 
aforesaid,  and,  in  the  case  of  real  estate,  a  certified  copy  of  such 
decree  shall  be  recorded  in  the  office  of  the  recorder  of  deeds  of 
the  county  where  said  real  estate  shall  lie,  in  the  deed  book, 
and  shall  be  indexed  by  the  recorder  in  the  grantors'  index  under 
the  name  of  the  decedent,  and  in  the  grantees'  index  under  the 
name  of  the  surviving  spouse,  and  shall  be  registered  in  the 
survey  bureau,  or  with  the  proper  authorities  empowered  to  keep 
a  register  of  real  estate,  if  any  there  be,  in  said  county.  The 
charges  for  recording  and  registering  shall  be  the  same  as  are 
provided  by  law  for  similar  services.  The  record  of  such  decree 
shall  be  deemed  and  held  to  be  prima  facie  proof  of  the  facts 
therein  set  forth  with  like  force  and  effect  as  the  record  of  a  deed  ; 
and  if,  upon  the  return  of  any  such  citation,  any  person  or  per- 
sons shall  appear  in  court  claiming  to  be  heirs  or  kindred  of 


INTESTATE  ACT— SECTION  17  (b)-iB  243 

such  intestate,  whose  rights  to  the  said  estate  shall  be  disputed 
by  such  surviving  spouse,  his  or  her  heirs  or  legal  representatives, 
then  the  court  may  direct  an  issue  to  determine  the  matter,  or 
may  make  such  order  therein  as  they  shall  think  proper. 

In  all  cases  the  decree  of  such  court  entered  upon  the  failure 
of  any  heirs  or  kindred  to  appear,  or  after  the  trial  of  such  an 
issue,  or  otherwise,  shall  not  be  subject  to  be  reopened  by  said 
court  after  the  expiration  of  six  months  from  the  date  of  its 
entry,  except  as  hereinafter  provided.  Any  such  cause  may  be 
removed  by  appeal  to  the  supreme  court  or  superior  court,  in 
the  same  manner  as  appeals  are  now  taken  by  law  in  cases 
determined  in  the  orphans'  court  or  tried  by  jury  upon  issues 
directed  by  that  court.  Where  the  record  in  such  cause  is  thus 
removed  to  an  appellate  court,  the  six  months'  period  within 
which  the  decree  is  subject  to  be  reopened  by  the  orphans'  court 
shall  cease  to  run  until  the  return  of  the  record  from  the 
appellate  court. 

NOTE. — This  is  Section  I  of  the  Act  of  April  6,  1833,  P.  L.  207,  2  Purd. 
2001-2,  modified  so  as  to  include  the  procedure  in  cases  of  real  estate  in 
the  same  or  other  counties  and  by  adding  provisions  for  recording  and 
as  to  the  conclusiveness  of  the  decree. 

The  provision  as  to  recording  is  copied  from  the  Act  of  June  20, 
1883,  P.  L.  131,  2  Purd.  2004,  providing  a  procedure  whereby  any  person 
taking  lands  under  the  intestate  laws  may  show  on  the  records  of  the 
orphans'  court  and  the  recorder  of  deeds  his  interest  in  such  lands.  The 
Commissioners  recommend  the  repeal  of  the  Act  of  1883  as  unnecessary 
or  ineffective. 

The  Act  of  April  6,  1833,  does  not  seem  to  have  been  drafted  by  the 
Commissioners  to  Revise  the  Civil  Code,  and  no  previous  act  containing 
similar  provisions  has  been  found. 

342.     ESTATES    PASSING    TO    PERSONS    ENTITLED 
UNDER  THE  ACT, 

SECTION  1 8.  The  real  estate  of  such  intestate  shall  be  vested  in 
the  person  or  persons  entitled  thereto  under  the  provisions  of 
this  act  for  such  estate  as  the  intestate  had  therein,  and  such 
person  or  persons  shall  be  entitled  to  the  personal  estate  abso- 
lutely. 

NOTE. — This  is  a  new  section,  introduced  in  order  to  avoid  the  necessity 
of  repeating  the  description  of  the  estates  to  be  taken  under  the  various 
preceding  sections. 

By  the  provisions  of  the  Intestate  Act  of  1917,  joint  owners,  in  fee,  as 
tenants  in  common  of  real  estate  may  have  partition  in  equity  of  the 


244  INTESTATE  ACT— SECTIONS  18-19 

estate  so  held,  upon  the  death  of  one  cotenant.    Maurer  v.   Straub,   16 
Sch.  174. 
See  Wightman's  Est.,  49  Pa.  C.  C.  614,  30  Dist.  885,  68  P.  L.  J.  833. 

343.     PERSONS    IN    THE    SAME    DEGREE    OF    CON- 
SANGUINITY TAKE  EQUALLY. 

SECTION  19.  Wherever  real  or  personal  estate  shall  descend  to 
or  be  distributed  among  several  persons,  whether  lineal  or  col- 
lateral heirs  or  kindred,  standing  in  the  same  degree  of  con- 
sanguinity to  the  intestate,  if  there  shall  be  only  one  of  such 
degree,  he  shall  take  the  whole  of  such  estate,  and  if  there  shall 
be  more  than  one,  they  shall  take  in  equal  shares,  and  if  real 
estate,  shall  hold  the  same  as  tenants  in  common. 

NOTE.— This  is  Section  14  of  the  Act  of  1833,  2  Purd.  2002,  omitting 
after  "wherever,"  the  words  "by  the  provisions  of  this  act,  it  is  directed." 
Section  i  of  the  Act  of  June  30,  1885,  P.  L.  251,  2  Purd.  2002,  making  the 
same  provision,  was  passed  in  consequence  of  the  decision  in  Hayes'  Appeal, 
89  Pa.  256,  that  the  children  of  deceased  uncles  and  aunts,  taking  by 
representation  under  Section  2  of  the  Act  of  April  27,  1855,  P.  L.  368, 
2  Purd.  1999,  were  not  within  the  scope  of  Section  14  of  the  Act  of  1833, 
and  took  per  stirpes  and  not  per  capita,  although  no  uncles  or  aunts 
survived. 

Since  Section  2  of  the  Act  of  1855  is  embodied  in  Section  n  of  the  new 
act  (see  323  supra)  the  provisions  of  the  new  Section  19  clearly  include 
first  cousins. 

There  seems  to  have  been  no  similar  provision  in  the  acts  previous  to 
1833- 

Where  decedent  died  intestate  leaving  as  next  of  kin  first  cousins,  it 
was  not  error  to  distribute  the  estate  in  equal  shares  as  this  is  clearly  the 
intent  of  the  Intestate  Act  of  1917,  which  reenacts  prior  statutes  providing 
for  distribution  where  the  beneficiaries  are  of  the  same  degree  of  con- 
sanguinity. Wightman's  Est.,  49  Pa.  C.  C.  614;  30  Dist.  885,  68  P.  L.  J. 
833  (see  323  supra). 

When  an  intestate's  only  next  of  kin  are  uncles  and  aunts,  they  take 
per  capita  and  not  per  stirpes  under  the  Intestate  Act  of  June  7,  1917, 
P.  L.  429;  and  if  an  uncle  or  aunt  be  deceased,  leaving  children,  such 
children  take  only  by  representation  the  share  their  parent  would  have 
taken  if  living. 

GEST,  J.,  held: 

"The  exceptant  relied  upon  Sections  10  and  12  of  the  Intestate  Act  of 
June  7,  1917,  P.  L.  429,  437,  which,  it  appears  from  the  report  of  the 
Commissioners  to  Codify  and  Revise  the  Law  of  Decedents'  Estates,  were 
derived  from  the  preexisting  law.  The  stirpetal  distribution,  however, 
which  is  provided  thereby  applies  only  in  case  the  decedent  is  survived 
by  one  or  more  than  one  grandparent,  and  not  when,  as  in  this  case, 


INTESTATE  ACT— SECTION  19-29-21  245 

all  the  grandparents  predeceased  the  intestate.  Where  the  next  of  kin 
of  the  intestate  are  all  uncles  and  aunts,  they  take  equally  and  per  capita, 
as  clearly  appears  from  Section  19  of  the  act;  and  if  an  uncle  or  aunt 
be  deceased,  leaving  children,  such  children  take  only  by  representation 
the  share  their  parent  would  have  taken  if  living,  as  is  provided  by  Sec- 
tion ii.  Brodie's  Est.,  30  Dist.  654. 

See  opinion  of  Moschzisker,  C.  J.,  January  3,  1922,  in  Miles'  Est.,  272 
Pa.  329. 

344.  POSTHUMOUS  CHILDREN. 

SECTION  20.  Descendants  and  relatives  of  an  intestate,  begot- 
ten before  the  death  of  the  intestate  and  born  thereafter,  shall  in 
all  cases  inherit  and  take  in  like  manner  as  if  they  had  been 
born  in  the  lifetime  of  such  intestate. 

NOTE. — This  is  Section  13  of  the  Act  of  1833,  2  Purd.  2002,  which  was 
founded  on  Section  10  of  the  Act  of  April  19,  1794,  3  Sm.  L.  143.  That 
section  provided :  "That  all  posthumous  children  shall,  in  all  cases  what- 
soever, inherit  in  like  manner,  as  if  they  were  born  in  the  lifetime  of  their 
respective  fathers." 

345.  LIMITATION  OF  CLAIMS. 

SECTION  21.  All  relatives  and  persons  concerned  in  the  estate 
of  any  intestate  who  shall  not  lay  legal  claim  to  their  respective 
shares  of  the  personal  estate  within  seven  years  of  the  decease 
of  the  intestate,  shall  be  debarred  from  the  same  forever: 
Provided,  That  if  any  such  relative  or  person  shall,  at  the  time 
of  the  decease  of  the  intestate,  be  within  the  age  of  twenty-one 
years,  he  or  she  shall  be  entitled  to  receive  and  recover  the  same, 
if  he  or  she  shall  lay  legal  claim  thereto  within  seven  years  after 
coming  to  full  age. 

NOTE. — This  is  Section  19  of  the  Act  of  1833,  2  Purd.  2003,  with  the 
insertion  of  the  words  "of  the  personal  estate"  in  accordance  with  the 
decisions  cited  in  the  note  to  Purdon,  and  the  omission  of  the  saving  as  to 
married  women. 

Section  19  of  the  Act  of  1833  was  founded  on  Section  18  of  the  Act 
of  April  19,  1794,  3  Sm.  L.  143,  the  revisers  omitting  the  saving  of  per- 
sons non  compos  mentis,  in  prison  or  out  of  the  United  States. 

The  Act  of  1684  (i72nd  Law)  imposed  a  limitation  of  three  years.  The 
Act  of  1693  (3  Sm.  L.  154  n.)  provided  the  same  limitation.  The  Act  of 
1700  (3  Sm.  L.  155  n.)  made  the  limitation  seven  years.  Section  5  of 
the  Act  of  1705  (3  Sm.  L.  157  n.)  read:  "That  all  such  of  the  intestate's 
relations,  and  persons  concerned,  who  shall  not  lay  legal  claim  to  their 
respective  shares,  within  seven  years  after  the  decease  of  the  intestate, 
shall  be  debarred  from  the  same  forever." 


246 


INTESTATE  ACT— SECTIONS  22-23 


346.     ADVANCEMENTS. 

SECTION  22.  If  any  person,  other  than  a  surviving  spouse, 
entitled  under  the  provisions  of  this  act  to  inherit  or  take  real 
or  personal  property  from  such  intestate,  shall  have  any  estate 
by  settlement  of  such  intestate,  or  shall  have  been  advanced  by 
him  in  his  lifetime,  either  in  real  or  personal  estate,  the  amount 
of  such  settlement  or  advancement  shall  be  charged  against  the 
share  of  the  person  who  shall  have  received  it,  so  that  the  total 
amount  received  by  him,  including  the  amount  of  such  settlement 
or  advancement,  shall  not  exceed  the  amount  received  by  each  of 
the  other  persons  who  are  equally  entitled  under  the  provisions 
of  this  act  to  inherit  or  take  from  said  intestate. 

NOTE. — This  is  founded  on  Section  16  of  the  Act  of  1833,  2  Purd. 
2002,  which  contained  in  substance  the  provisions  of  Section  9  of  the  Act 
of  April  19,  1794,  3  Sm.  L.  143,  the  changes  now  made  being  for  the 
purpose  of  including  all  persons  entitled  under  the  act  and  simplifying  the 
language. 

Section  2  of  the  Act  of  1705  (3  Sm.  L.  156  n.)  contained  a  provision 
similar  to  that  of  the  Act  of  1794. 

The  Act  of  March  13,  1815,  P.  L.  173  (6  Sm.  L.  298),  provided  for  the 
appointment  of  three  auditors  to  settle  the  amount  of  advancements  where 
some  of  the  heirs  resided  out  of  the  state,  and  for  the  procedure  by  the 
auditors.  It  is  stated  in  a  note  in  Pepper  and  Lewis'  Digest  of  Laws  that 
this  act  was  supplied  by  Section  20  of  the  Act  of  March  29,  1832,  P.  L.I9O. 
The  Act  of  1815  does  not  appear  in  Stew.  Purd.  It  is  now  recommended 
for  repeal. 


347- 


PERSON  ADJUDGED  GUILTY  OF  MURDER  NOT 
TO  INHERIT  FROM  MURDERED  PERSON. 


SECTION  23.  No  person  who  shall  be  finally  adjudged  guilty, 
efther  as  principal  or  accessory,  of  murder  of  the  first  or  second 
degree,  shall  be  entitled  to  inherit  or  take  any  part  of  the  real 
or  personal  estate  of  the  person  killed,  as  surviving  spouse,  heir 
or  next  of  kin  to  such  person  under  the  provisions  of  this  act. 

NOTE. — This  is  a  new  section  framed  to  meet  the  situation  presented  in 
Carpenter's  Estate,  170  Pa.  203.  In  that  case,  a  son  killed  his  father,  was 
convicted  of  murder  and  was  executed  therefor.  Jlis  mother,  the  widow 
of  the  intestate,  was  convicted  as  an  accessory  after  the  fact  and  duly 
sentenced.  The  motive  of  the  crime  was  to  get  possession  of  the  estate 
of  the  decedent,  and  the  supreme  court  was  constrained  to  hold  that  the 
criminals  had  not  forfeited  their  rights  under  the  intestate  law. 

This  decision,  although  criticized  on  equitable  grounds :  36  American 
Law  Register  N.  S.  225 ;  64  University  of  Pennsylvania  Law  Review 
307,  is  nevertheless  in  accordance  with  the  weight  of  authority:  see  In  Re 


INTESTATE  ACT— SECTIONS  23-24-25  247 

Houghton  (1915)  2  Ch.  173;  15  Columbia  Law  Review  260,  275;  but  it 
appears  shocking  to  morality  that  an  heir  should  be  permitted  to  profit 
by  his  crime. 

The  Commissioners  in  their  draft  of  the  Wills  Act  herewith  submitted 
(see  244  supra)  have  embodied  a  similar  provision  applicable  to  the  case 
of  a  devisee  or  legatee,  in  order  that  the  same  rule  may  apply.  The  Com- 
missioners are  of  opinion  however  that  the  guilt  of  the  party  charged  with 
the  crime  should  be  determined  by  his  conviction  in  the  proper  forum. 

348.  ESCHEAT. 

SECTION  24.  In  default  of  all  such  known  heirs  or  kindred,  or 
surviving  spouse,  competent  to  take  as  aforesaid,  the  real  and 
personal  estate  of  such  intestate  shall  go  to  and  be  vested  in  the 
commonwealth  by  escheat. 

NOTE. — This  is  Section  12  of  the  Act  of  1833,  2  Purd.  2002,  with  the 
addition  of  the  words,  "competent  to  take." 

The  section  was  introduced  in  the  Act  of  1833  for  the  purpose  of  com- 
pleting the  system,  and  was  taken  from  the  Act  of  September  29,  1787, 
2  Sm.  I*.  425. 

349.  ACT  NOT  TO  APPLY  TO  PERSONAL  ESTATE 

OF    INTESTATE    DYING    DOMICILED    OUT- 
SIDE THE  COMMONWEALTH. 

SECTION  25.  Nothing  in  this  act  contained,  relative  to  a  dis- 
tribution of  personal  estate  among  kindred,  shall  be  construed  to 
extend  to  the  personal  estate  of  an  intestate  whose  domicile,  at 
the  time  of  his  death,  was  out  of  this  commonwealth. 

NOTE. — This  is  Section  20  of  the  Act  of  1833,  2  Purd.  2004,  which  was 
new  in  the  Act  of  1833. 

In  the  distribution  of  assets  of  foreign  intestates,  the  Orphans'  Court  of 
Allegheny  County  will  require  that  the  domicile  of  the  decedent  be  con- 
clusively established  before  a  decree  will  be  made.  If  the  distributees  are 
domiciled  abroad,  their  rights  to  share  in  the  estate  must  be  clear  as  well 
as  how  said  shares  are  to  be  disbursed  either  by  consular  agencies  or 
otherwise. 

MILLER,  P.  J.,  held: 

"We  now  indicate,  as  suggestions,  certain  general  principles,  the  same 
to  be  lodged  with  the  clerk  for  the  benefit  of  and  aid  to  accountants  and 
counsel. 

"These  are  as  follows: 

"First,  that  the  domicile  of  the  decedent  must  be  ascertained  and  found 
as  a  fact  before  the  question  of  distribution  can  be  considered;  to  find 
this  fact,  residence  and  intent  must  concur  and  must  be  made  to  appear 
in  each  case. 


248  INTESTATE  ACT— SECTIONS  25-26-27 

"Second,  that  the  grant  of  letters  by  the  register  is  not  conclusive 
evidence  of  domicile. 

"Third,  that  domicile  having  been  established,  distribution  will  be  made 
in  accordance  with  the  laws  thereof ;  if  domiciled  in  Pennsylvania,  then 
according  to  the  laws  of  this  state;  if  domiciled  abroad: 

"(a)  To  the  parties  entitled,  either  as  personal  representatives  or 
directly  upon  adjudications  in  the  foreign  domicile  so  showing,  the  same 
to  be  fully  authenticated,  including  proof  of  the  law  governing  the  same. 

"(b)  That  when  distribution  cannot  be  made  to  the  parties  entitled 
thereto  under  the  law  of  the  foreign  domicile  as  set  forth  in  paragraph 
(a)  above,  then  distribution  may  be  made  to  the  duly  accredited  consular 
agent  of  the  foreign  domicile,  upon  proof  of  credentials  filed;  the  bal- 
ance so  awarded  to  him  on  his  acceptance  as  consular  representative  to  be 
held  and  transmitted,  under  general  treaties,  conventions,  consular  rights 
or  international  law,  as  duly  recognized  and  as  existing  between  the 
United  States  and  the  country  of  the  decedent's  domicile. 

"Fourth,  that  powers  of  attorney  by  claimants,  whether  as  personal 
representatives  or  as  direct  heirs,  in  the  decedent's  foreign  domicile,  cannot 
be  recognized  unless  they  are  accompanied  by  proof  of  a  foreign  adjudi- 
cation in  the  domicile  of  the  decedent  of  the  laws  governing  the  same 
and  of  his  right  thereto. 

"Fifth,  that  no  suggestion  here  covers  the  question  argued  to  a  great 
extent  of  the  right  of  consuls  or  consular  agents  to  be  granted  letters 
of  administration,  since  no  such  question  actually  arises  in  any  of  the 
class  of  estates  submitted. 

"Sixth,  that  in  the  absence  of  proof  of  foreign  domicile  or  of  the  rights 
of  parties  to  take,  or  failure  to  ascertain  who  they  are,  with  failure  to 
present  the  adjudication  and  proofs  of  the  laws  herein  set  forth,  and  on 
the  failure  or  refusal  of  consular  representatives  to  accept  residues  of 
balances  for  transmission,  where  no  other  disposition  is  made,  distribution 
must  be  suspended  pending  further  proceedings."  Estates  of  Foreign 
Intestates,  68  P.  I,.  J.  i. 

350.  SHORT  TITLE. 

SECTION  26.  This  act  shall  be  known  and  may  be  cited  as  the 
Intestate  Act  of  1917. 

351.  WHEN  ACT  SHALL  GO  INTO  OPERATION. 

SECTION  27.  This  act  shall  take  effect  on  the  thirty-first  day  of 
December,  1917,  and  shall  apply  to  the  estates,  real  and  per- 
sonal, of  all  persons  dying  intestate  on  or  after  said  day.  As  to 
the  estates,  real  and  personal,  of  all  persons  dying  before  that 
day,  the  existing  laws  shall  remain  in  full  force  and  effect. 

The  orphans'  court  possesses  no  jurisdictional  authority  to  appoint 
appraisers  to  appraise  and  set  aside  estate  property  claimed  as  and  for  a 
$5,000.00  allotment  for  the  surviving  spouse  of  an  intestate  dying  before 


INTESTATE  ACT— SECTONS  27-28  249 

December  31,  1917;  the  power  of  the  said  Court  being  limited  and  con- 
fined to  appointing  substitute  appraisers  to  take  the  place  of  estate  ap- 
praisers appointed  by  the  personal  representative  of  the  estate  but  who  are 
unable  to  act.  Hilton's  Estate,  i  Wash.  125. 

352.     REPEALER. 

SECTION  28.  This  Act  of  Assembly  is  intended  as  an  entire 
and  complete  system  for  the  descent  and  distribution  of  the 
estates,  real  and  personal,  of  persons  dying  intestate.  The  follow- 
ing acts  and  parts  of  acts  of  assembly  are  hereby  repealed  as 
respectively  indicated,  but  so  far  only  as  relates  to  the  estates, 
real  and  personal,  of  any  person  or  persons  dying  intestate  on  or 
after  the  thirty-first  day  of  December,  1917.  The  repeal  of  the 
first  section  of  an  act  shall  not  repeal  the  enacting  clause. 

Sections  3  to  13  inclusive  and  18  of  an  act  entitled  "An  Act 
directing  the  descent  of  intestates'  real  estates,  and  distribution 
of  their  personal  estates,  and  for  other  purposes  therein  men- 
tioned," passed  April  19,  1794,  3  Sm.  L.  143,  absolutely. 

Sections  5,  6  and  7  of  an  act  entitled  "An  Act  supplementary 
to  the  act,  entitled  'An  Act  directing  the  descent  of  intestates' 
real  estates,  and  distribution  of  their  personal  estates,  and  for 
other  purposes  therein  mentioned,'  "  passed  April  4,  1797,  3  Sm. 
L.  296,  absolutely. 

An  act  entitled  "An  Act  for  the  settlement  of  the  estates  of 
intestates,  where  some  of  the  heirs  reside  out  of  the  state,"  ap- 
proved March  13,  1815,  P.  L.  173. 

An  act  entitled  "An  Act  relative  to  escheated  estates,"  ap- 
proved January  21,  1819,  P.  L.  25,  absolutely. 

An  act  entitled  "A  supplement  to  an  act  entitled  'An  Act 
relative  to  escheated  estates,'  passed  the  twenty-first  of  January, 
eighteen  hundred  and  nineteen,"  approved  April  6,  1833,  P.  L. 
207,  absolutely. 

An  act  entitled  "An  Act  relating  to  the  descent  and  distribution 
of  the  estates  of  intestates,"  approved  April  8,  1833,  P.  L.  315, 
absolutely. 

Section  9  of  an  act  entitled,  "A  supplement  to  an  act,  entitled 
'An  Act  relative  to  the  LeRaysville  Phalanx,'  passed  March, 
Anno  Domini  one  thousand  eight  hundred  and  forty-seven,  and 
relative  to  obligors  and  obligees,  to  secure  the  right  of  married 
women,  in  relation  to  defalcation,  and  to  extend  the  boundaries 
of  the  borough  of  Ligonier,"  approved  April  n,  1848,  P.  L. 
536,  in  so  far  as  it  relates  to  the  distribution  of  the  personal  es- 


250  INTESTATE  ACT— SECTION  28 

tate  of  a  deceased  married  woman,  and  section  10  of  said  act, 
absolutely. 

Section  2  of  an  act  entitled  "An  Act  to  amend  certain  defects 
of  the  law  for  the  more  just  and  safe  transmission  and  secure 
enjoyment  of  real  and  personal  estate,"  approved  April  27,  1855, 
P.  L.  368,  absolutely,  and  section  3  of  said  act  in  so  far  -as  it 
relates  to  inheritance. 

Section  5  and  the  proviso  to  Section  7  of  an  act  entitled  "An 
Act  relating  to  certain  duties  and  rights  of  husband  and  wife, 
and  parents  and  children,"  approved  May  4,  1855,  P.  L.  43°» 
absolutely. 

An  act  entitled  "An  Act  to  legitimate  children  born  out  of  law- 
ful wedlock,"  approved  May  14,  1857,  P.  L.  507,  in  so  far  as  it 
relates  to  inheritance. 

An  act  entitled  "An  Act  permitting  illegitimates  to  inherit  from 
each  other  in  certain  cases,"  approved  June  5,  1883,  P.  L.  88, 
absolutely. 

An  act  entitled  "An  Act  to  facilitate  the  proof  and  record  of 
the  title  of  real  estate  vested  in  the  heirs  of  certain  intestates," 
approved  June  20,  1883,  P.  L.  131,  absolutely. 

An  act  entitled  "An  Act  providing  for  the  manner  in  which 
estates  of  intestates  shall  be  distributed,  where  the  distributees 
stand  in  the  same  degree  of  consanguinity  to  the  intestate," 
approved  June  30,  1885,  P.  L.  251,  absolutely. 

An  act  entitled  "An  Act  relating  to  the  mode  of  inheriting 
from,  through,  or  by,  a  child  or  children  adopted  according  to 
law,  and  being  a  supplement  to  an  act,  entitled  'An  Act  relating 
to  certain  duties  of  husband  and  wife,  and  parents  and  children,' 
approved  the  fourth  day  of  May,  one  thousand  eight  hundred 
and  fifty-five,"  approved  April  13,  1887,  P-  L.  53,  absolutely. 

The  proviso  to  Section  I  of  an  act  entitled  "An  Act  amending 
section  seventh  of  an  act,  entitled  'An  act  relating  to  certain 
duties  and  rights  of  husband  and  wife,  and  parents  and  children,' 
approved  the  fourth  day  of  May,  Anno  Domini  one  thousand 
eight  hundred  and  fifty-five,  providing  that  married  men  or 
women,  in  case  of  drunkenness  or  profligacy  of  husbands  or 
wives,  may  consent  to  the  adoption  of  their  children,"  approved 
May  19,  1887,  P.  L.  125,  absolutely. 

An  act  entitled  "An  Act  relating  to  estates  of  intestates,  pro- 
viding that  children  and  descendants  of  deceased  grandparents 
shall  represent  such  deceased  grandparents  whenever  grand- 


INTESTATE  ACT— SECTION  28  251 

parents  are  entitled  as  next  of  kin  to  intestates,"  approved  May 
25,  1887,  P.  L.  261,  absolutely. 

The  first  proviso  of  Section  I  of  an  act  entitled  "An  Act 
relating  to  the  adoption  of  any  person  as  an  heir,"  approved 
May  9,  1889,  P.  L.  168,  absolutely. 

An  act  entitled  "An  Act  to  amend  the  third  section  of  the  act, 
entitled  'An  Act  to  amend  certain  defects  of  the  law  for  the 
more  just  and  safe  transmission  and  secure  enjoyment  of  real 
and  personal  estate,'  approved  the  twenty-seventh  day  of  April, 
Anno  Domini  one  thousand  eight  hundred  and  fifty-five,  provid- 
ing that  illegitimate  children  shall  take  their  mother's  name,  and 
she  and  her  mother,  and  they  and  their  issue,  shall  be  capable  to 
take  or  inherit  from  each  other,"  approved  June  14,  1897,  P.  L. 
142,  in  so  far  as  it  relates  to  inheritance. 

An  act  entitled  "An  Act  to  allow  legitimate  and  illegitimate 
children,  born  from  the  same  mother,  dying  without  children,  to 
inherit  real  and  personal  property  from  each  other,  in  exclusion 
to  the  grandmother  of  the  illegitimate  child  or  children,  as  though 
they  had  been  born  in  lawful  wedlock,"  approved  June  10,  1901, 
P.  L.  551,  absolutely. 

Sections  2,  3  and  4  of  an  act  entitled  "An  Act  to  regulate  and 
define  the  legal  relations  of  an  illegitimate  child,  or  children,  its 
or  their  heirs,  with  each  other  and  the  mother  and  her  heirs," 
approved  July  10,  1901,  P.  L.  639,  absolutely. 

An  act  entitled  "An  Act  to  amend  an  act,  entitled  'An  Act  to 
regulate  and  define  the  legal  relations  of  an  illegitimate  child  or 
children,  its  or  their  heirs  with  each  other  and  the  mother  and 
her  heirs,  approved  the  tenth  day  of  July,  Anno  Domini  one 
thousand  nine  hundred  and  one;  and  applying  and  extending 
it  to  all  cases,  now  pending,  where  the  estate  of  such  illegitimate 
or  mother  has  not  been  actually  paid  to  and  received  by  collateral 
heirs  or  the  Commonwealth,"  approved  March  26,  1903,  P.  L. 
70,  absolutely. 

The  proviso  to  Section  i  of  an  act  entitled  "An  Act  to  amend 
an  act,  entitled  'An  act  amending  section  seventh  of  an  act, 
entitled  "An  Act  relating  to  certain  duties  and  rights  of  husband 
and  wife  and  parents  and  children,"  approved  the  fourth  day  of 
May,  Anno  Domini  one  thousand  eight  hundred  and  fifty-five, 
providing  that  married  men  or  women,  in  case  of  drunkenness  or 
profligacy  of  husbands  or  wives,  may  consent  to  the  adoption  of 
their  children,' "  approved  April  22,  1905,  P.  L.  297,  absolutely. 


252  INTESTATE  ACT— SECTION  28 

An  act  entitled  "An  Act  to  amend  section  one  of  an  act,  en- 
titled 'An  Act  relating  to  the  descent  and  distribution  of  the 
estates  of  intestates,'  passed  and  approved  April  eighth,  one  thou- 
sand eight  hundred  and  thirty-three,  defining  and  declaring  the 
interest  that  shall  descend  to  and  vest  in  the  surviving  husband 
or  wife  of  such  intestate,"  approved  April  I,  1909,  P.  L.  87, 
absolutely.1 

Sections  3  and  4  of  an  act  entitled  "An  Act  relating  to  the 
adoption  of  adult  persons  as  heirs,"  approved  June  I,  1911,  P.  L. 
539,  in  so  far  as  they  relate  to  inheritance  and  devolution  under 
the  intestate  laws. 

An  act  entitled/'A  supplement  to  an  act,  entitled  'An  Act  to 
amend  section  one  of  an  act,  entitled  "An  Act  relating  to  the 
descent  and  distribution  of  the  estates  of  intestates,"  passed  and 
approved  April  eighth,  one  thousand  eight  hundred  and  thirty- 
three,  defining  and  declaring  the  interest  that  shall  descend  to 
and  vest  in  the  surviving  husband  or  wife  of  such  intestate/  ap- 
proved April  first,  Anno  Domini  one  thousand  nine  hundred  and 
nine,"  approved  July  21,  1913,  P.  L.  872,  absolutely. 

An  act  entitled  "An  Act  amending  article  two  of  section  one 
of  an  act,  entitled  'An  Act  relating  to  the  descent  and  distribution 
of  the  estates  of  intestates,'  approved  the  eighth  day  of  April,  one 
thousand  eight  hundred  thirty-three,  as  amended,  by  further 
regulating  the  appointment  and  number  of  appraisers,"  approved 
July  21,  1913,  P.  L.  875,  absolutely.1 

An  act  entitled  "An  Act  to  amend  an  act,  approved  the  fourth 
day  of  May,  one  thousand  eight  hundred  and  fifty-five,  entitled 
'An  Act  relating  to  certain  duties  and  rights  of  husband  and  wife 
and  parents  and  children,' "  approved  May  3,  1915,  P.  L.  234, 
absolutely. 

An  act  entitled  "An  Act  amending  section  one  of  an  act,  en- 
titled 'An  Act  amending  section  seven  of  an  act,  entitled  "An 
act  relating  to  certain  duties  and  rights  of  husband  and  wife,  and 
parents  and  children,"  approved  the  fourth  day  of  May,  Anno 
Domini  one  thousand  eight  hundred  and  fifty -five;  providing 
that  married  men  or  women,  in  case  of  drunkenness  or  profligacy 
of  husbands  or  wives,  may  consent  to  the  adoption  of  their 
children,'  approved  the  nineteenth  day  of  May,  Anno  Domini 
one  thousand  eight  hundred  and  eighty-seven,"  approved  May  28, 
1915,  P.  L.  580,  in  so  far  as  it  relates  to  inheritance  and  devolu- 
tion under  the  intestate  laws. 


INTESTATE  ACT— SECTION  28  253 

All  other  acts  of  assembly,  or  parts  thereof,  that  are  in  any 
way  in  conflict  or  inconsistent  with  this  Act  or  any  part  thereof, 
are  hereby  repealed,  so  far  as  relates  to  the  estates,  real  and  per- 
sonal, of  any  person  or  persons  dying  intestate  on  or  after  the 
thirty-first  day  of  December,  1917. 

1See  Hilton's  Est.  i  Wash.  125,  wherein  the  Court  held: 

"In  Section  28,  this  language  appears: 

"  'The  following  acts  and  parts  of  acts  of  assembly  are  hereby  repealed 
as  respectively  indicated, — but  so  far  only  as  relate  to  the  estates,  real 
and  personal,  of  any  person  or  persons  dying  intestate  on  or  after  the  3ist 
of  December,  1917.' 

"Later  on  in  said  Section  28,  the  Acts  of  April  i,  1909,  P.  L.  87  and 
July  21,  1913,  P.  L.  875,  are  cited  for  repeal  under  the  said  conditions 
specified  earlier  in  said  section.  It  is  thus  seen  that  by  its  very  terms 
the  Intestate  Act  of  1917,  P.  L.  429,  is  to  apply  to  estates  of  those  only 
who  died  on  or  after  December  31,  1917;  and  that,  conversely,  the  said 
statute  is  not  to  apply  to  the  estates  of  those  who  died  prior  to  that 
date  (in  which  last  category  falls  the  estate  of  Wallace  J.  Hilton  under 
consideration).  As  to  the  Hilton  Estate,  therefore,  the  said  Intestate 
Act  of  1917,  P.  L,.  429,  expressly  says  that  the  laws  as  they  existed  prior 
to  December  31,  1917,  shall  remain  and  apply  in  full  force  and  effect. 

"We  have  hereinbefore  reached  the  conclusion  that  the  Wallace  J. 
Hilton  Estate  is  to  be  controlled  and  governed,  .so  far  as  the  $5,000.00 
allotment  is  concerned,  by  the  said  Act  of  July  21,  1913,  P.  L.  875,  which, 
as  to  estates  of  all  persons  dying  prior  to  December  31,  1917,  remains 
expressly  unrepealed  by  the  Intestate  Act  of  1917,  P.  L.  429.  Certainly, 
had  the  Legislature  intended  that  the  procedure  relative  to  spouses' 
allotments  prescribed  by  the  Intestate  Act  of  1917,  P.  L.  429,  should 
apply  to  and  govern  as  well,  estates  of  persons  dying  before  December  31, 
1917,  they  would  have  had  the  language  of  the  Act  so  state  and  they 
would  not  have  employed  the  quoted  language  of  Sections  27  and  28." 


THE  FIDUCIARIES  ACT 

of 
June  6,  1917,  (P.  L.  447) 

PRELIMINARY  NOTE  BY  COMMISSION. 

In  this  voluminous  Act,  the  Commissioners  have  endeavored 
to  arrange  in  one  connected  and  systematic  statute  the  law  re- 
lating to  the  administration  and  distribution  of  the  estates  of 
decedents  and  of  minors,  and  of  trust  estates,  and  particularly 
the  jurisdiction,  powers  and  procedure  of  the  orphans'  court  rela- 
tive to  fiduciaries. 

The  intricacy  of  the  subject  is  greater  than  anyone  will  readily 
believe  who  has  not  taken  the  trouble  to  examine  it  himself ;  and 
the  labors  of  the  Commissioners  have  been  principally  directed 
to  the  revision  and  consolidation  of  existing  statutes  and  the 
repeal  of  those  that  have  become  obsolete,  rather  than  to  the 
introduction  of  novel  legislation.  The  changes  recommended  are 
for  the  most  part  designed  to  simplify  and  harmonize  the  pro- 
cedure, which,  in  many  instances,  has  become  complicated  by 
the  passage  of  numerous  statutes  relating  to  specific  matters  of 
detail. 

In  Section  6,  the  Commissioners  have  revised  the  law  relative 
to  the  estates  of  persons  presumed  to  be  dead  on  account  of 
absence  for  seven  years  or  more  from  their  last  domicile,  a  sub- 
ject that  has  become  very  complicated  by  the  numerous  statutes 
which  have  been  adopted  in  the  past  thirty  years,  and  stands  in- 
great  need  of  revision. 

In  Section  II,  a  method  of  compelling  the  filing  of  an  inventory 
has  been  provided,  and  the  fees  of  appraisers  of  decedents'  es- 
tates have  been  regulated. 

In  Section  12,  the  widow's  and  children's  exemption  has  been 
increased  from  $300  to  $500,  and  the  whole  procedure  regulated. 

In  Section  14,  the  rents  of  real  estate  accruing  after  the  death 
of  the  owner  have  been  made  assets  for  the  payment  of  his 
debts,  when  the  personal  estate  is  insufficient,  and  the  procedure 
has  been  regulated. 

254 


FIDUCIARIES  ACT  255 

In  Section  15,  the  lien  of  decedents'  debts  has  been  shortened 
from  two  years  to  one  year  unless  continued  by  proper  pro- 
ceedings, and  the  law  as  to  judgments  against  decedents  and 
their  representatives  has  been  revised. 

Section  16  contains  the  statute  law  relative  to  sales  and  mort- 
gages of  real  estate  for  the  payment  of  debts.  Very  little  change 
is  made,  but  the  phraseology  has  been  altered  and  the  pro- 
visions of  the  law  rearranged  in  more  symmetrical  order.  Sales 
for  payment  of  debts  are  now  governed  by  several  Acts  of  As- 
sembly, some  of  the  provisions  of  which  are  obsolete  or  inappro- 
priate to  present  conditions.  The  procedure  is  regulated  and  the 
law  as  to  confirmation  of  sales  and  the  discharge  of  liens  is  par- 
ticularly provided  for. 

In  Section  18,  the  procedure  in  cases  of  contracts  of  decedents 
for  the  sale  or  purchase  of  real  estate  is  more  clearly  regulated. 

In  Section  21,  the  law  on  the  subject  of  interest  on  legacies  is 
defined,  particularly  in  reference  to  interest  on  legacies  bequeathed 
in  trust. 

In  Section  22,  the  Commissioners  recommend  a  general  rule 
upon  the  subject  or  apportionment  of  all  periodical  payments 
directed  by  will. 

In  Section  23,  a  change  is  recommended  where  there  is  a  bequest 
of  personal  property  or  the  proceeds  of  real  estate  for  life  and 
the  life  tenant  does  not  enter  security,  in  consequence  of  which  a 
trustee  is  appointed.  Such  trustee,  according  to  the  revised  act, 
undertakes  only  the  usual  responsibility  of  a  trustee  and  is  not  to 
be  considered  as  an  insurer  of  the  fund. 

In  Section  24,  the  jurisdiction  of  the  orphans'  court  for  the 
collection  or  enforcement  of  all  legacies  is  made  exclusive. 

In  Section  31,  the  power  of  testamentary  trustees  and  guardians 
to  lease  real  estate  is  extended  and  regulated. 

In  Section  32,  elections  by  fiduciaries  in  behalf  of  their  wards 
or  cestuis  que  trust  are  provided  for. 

In  Section  40,  the  orphans'  court  is  empowered  to  authorize 
fiduciaries  to  settle  or  compromise  litigation  or  disputes. 

In  Section  41,  the  power  of  fiduciaries  to  invest  trust  funds  is 
extended. 

In  Section  42,  more  extensive  powers  are  given  to  fiduciaries  to 
incorporate  or  join  in  the  incorporation  of  their  decedent's  busi- 
ness. 


256  FIDUCIARIES  ACT— CONTENTS 

In  Section  46  and  other  sections,  the  term  for  the  settlement  of 
a  decedent's  estate  is  shortened  to  six  months  instead  of  one 
year  from  the  date  of  the  grant  of  letters  testamentary  or  of  ad- 
ministration ;  and  in  the  same  section  power  is  expressly  given  to 
the  orphans'  court  to  have  examined  the  assets  of  estates  in  the 
hands  of  fiduciaries.  The  Commissioners  have  also  provided  for 
express  notice  of  the  filing  of  accounts  to  be  given  to  all  persons 
who  claim  to  be  interested. 

In  this  section  the  law  is  made  more  specific  as  to  the  place 
where  trustees'  accounts  should  be  filed ;  and  the  jurisdiction  over 
testamentary  trustees  is  made  exclusive  in  the  orphans'  court. 

In  Section  49,  more  specific  provisions  are  made  as  to  distribu- 
tion of  estates. 

In  Section  53,  the  law  as  to  the  removal  of  fiduciaries  is 
codified  and  revised,  and  summary  power  is  given  to  the  court 
in  cases  that  seem  to  require  it. 

In  Section  58,  the  powers  of  foreign  fiduciaries  are  revised. 

In  Section  59,  the  law  on  the  subject  of  the  appointment  of 
guardians  is  recast  and  codified. 

In  Section  60,  the  law  on  the  subject  of  trustees  durante 
absentia  is  revised  in  connection  with  the  law  as  to  the  estates  of 
presumed  decedents. 

TABLE  OF  CONTENTS. 

1917  Section 

Pamphlet  Number 

Laws  Herein 

The  Fiduciaries  Act 447  353 

Section  I.  Definition  of  "fiduciary," 457  354 

Section  2.  Granting  of  letters  testamentary  and  of 

administration,    355 

(a)  Jurisdiction  of  register,   355 

(b)  Letters  not  to  be  granted  after  twenty-one 

years,  except  on  order  of  court, 458               356 

(c)  Who  entitled  to  letters  of  administration,  357 

(d)  Petition   for   letters,    358 

Section  3.  Letters    of    administration    c.    t.    a.    and 

d.  b.  n.,    359 

(a)  Granting  letters  c.  t.  a 359 

(b)  Granting  of  letters  d.  b.  n.  c.  t  a. 360 

(c)  Granting  of  letters  d.  b.  n., 459  361 

(d)  Powers  of  executors  extended  to  admin- 
istrators,   c.    t.   a.,    362 

(e)  Powers  of  administrators  d.  b.  n., 363 


FIDUCIARIES  ACT— CONTENTS 


257 


1917          Section 
Pamphlet      Number 
Laws         Herein 
Section  4.  Granting    of    letters    durante    minoritate, 

durante  absentia,  and  pendente  lite, 364 

Section  5.  Acts  of  administrator  or  executor  not  to 
be  impeached  although  will,  or  later  will, 

be    discovered,    460               365 

Section  6.  Presumed    decedents,    366 

(a)  Petition  and  advertisement, 366 

(b)  Petition  and  advertisement  as  to  ancillary 

letters,    367 

(c)  Hearing  by  court,   or   by   examiner   and 

master ;    competency  of  witnesses 461               368 

(d)  Decree  that  presumption  of  death  is  made 

out,   and   advertisement   thereof,    369 

(e)  Confirmation  or  vacation  of  decree, 370 

(f)  Effect  as  to  real  estate ;  title  of  purchaser ; 

bond  by  party  selling  or  conveying 462               371 

(g)  Administration  and  distribution  of  estate,  372 
(h)  Refunding  bonds;  appointment  of  trustee 

on  refusal,  neglect,  or  inability  to  give 

bond,    463               373 

(i)  Vacation  of  decree;   effect  as  to  acts  done,  374 

(j)  Intervention  in  actions  by  persons  erron- 
eously supposed  to  be  dead;    opening  of 

judgments,   375 

(k)  Procedure    where    will    or    later    will    is 

produced  after  letters  have  been  granted,  464               376 

(1)  Citation  by  register  to  parties  interested,. .  465               377 

(m)  Probate  of  will,  or  later  will;    revocation 

of  letters,  and  granting  of  new  letters,..  378 

(n)   Payment  of  costs,   379 

Section  7.  Oaths  of  executors  and  administrators,..  380 

(a)  Form  of  oath,    380 

(b)  Oath  by  officer  of  corporation, 466               381 

Section  8.  Bonds   of   administrators   and   executors,  382 

(a)  Form  of  bond  of  administrator, 382 

(b)  Bond  of  administrator  c.  t.  a., 467               383 

(c)  Form  of  bond  of  nonresident  executor,. .  384 

(d)  Grant  of  letters  without  bond ;  liability  of 

register  of  wills,  468               385 

(e)  Bond  of  executor  or  administrator  of  de- 

ceased  fiduciary,    386 

( f )  Exceptions  to   bonds,    387 

Section  9.  Bonds  of   fiduciaries   in   general, 469               388 

(a)  Suits  on  bonds,    388 

(b)  Reduction   of    bonds,    389 

(c)  Expense  of  obtaining  bond  of  corporation,  390 
17 


258 


FIDUCIARIES  ACT— CONTENTS 


1917  Section 

Pamphlet     Number 

Laws         Herein 

Section  10.  Advertisement  of  granting  of  letters, 39* 

Section  II.  Inventory    and    appraisement, 47°  392 

(a)  Inventory  to  be  filed  in  thirty  days 392 

(b)  Procedure  to  compel  filing  of  inventory,  393 

(c)  Bonds,  notes,  other  evidences  of  debt,  all 
claims  and  demands  for  money,  and  other 
personal  property  to  be  included  in  in- 
ventory   394 

(d)  Debt   due   by   executor   not   released   by 
appointment,  and  to  be  included   in   in- 
ventory,    395 

(e)  Rents  due  to  tenant  for  life  to  be  included 

in  inventory 396 

(f)  Arrearages  of  rent-charge,  or  other  rent 

or    reservation,    to    be    included    in    in- 
ventory,    397 

(g)  Estates  in  land  for  life  of  another  to  be 

included   in   inventory,    471  398 

(h)  After-discovered    property    to   be    inven- 
toried,      399 

(i)  Appraisement ;    oath  of  appraisers 400 

( j )  Notice  of  appraisement ;    return,  401 

(k)   Compensation   of    appraisers,    402 

Section  12.  Widow's  and  children's  exemption,   ....  403 

(a)  Claim  and  appraisement  or  setting  apart; 

appointment  of  appraisers  by  court, 403 

(b)  Liens  for  purchase-money  of  real  estate 

not  to  be  affected 472  404 

(c)  Oath  and  compensation  of  appraisers, 405 

(d)  Advertisement    or    notice;     confirmation 
and  filing  of  appraisement;    payment  of 

expenses   of   advertisement   or   notice,..  406 

(e)  Exemption   to   minor   children, 473  407 

1.  Duty  of  executor  or  administrator  to 

act,   407 

2.  Guardian  or  executor  or  administrator 

to  select  property  to  be  set  aside, 408 

(f)  Where  estate  does  not  exceed  five  hundred 

dollars 409 

(g)  Claim   of   exemption   out  of    real   estate 
appraised  at  more  than  amount  of  claim ; 
appraisement  and  confirmation;   payment 

of  excess;    sale  on  failure  to  pay, 410 

(h)  Title  to  vest  on  payment  of  excess;    dis- 
tribution of  proceeds  of  sale, 474  411 


FIDUCIARIES  ACT— CONTENTS 


259 


1917 

Pamphlet 
Laws 


(i)  Widow  or  children  entitled  to  rents,  in- 
come, interest,  and  dividends  from  death 
of  decedent;  deduction  of  proportionate 
part  upon  failure  to  pay  excess  value  of 
real  estate,  

(j)  Procedure  where  real  estate  lies  in  another 
county,  or  is  divided  by  a  county  line, . . 

(k)  Recording  and  registry  of  decree  confirm- 
ing appraisement  of  real  estate, 475 

Section  13.  Payment  of  debts  of   decedent, 

(a)  Order  of  payment, 

(b)  Payment  not  to  be  compelled  within  six 
months,    

Section  14.  Rents  of  real  estate  to  be  assets  for  pay- 
ment of  debts  when  personal  estate  insuffi- 
cient; collection  by  executor  or  admin- 
istrator,    476 

Section  15.  Lien   of   debts   of   decedent, 

(a)  Lien   limited   to   one   year   unless   action 
brought,    indexed,    and    duly    prosecuted 
to  judgment,    

(b)  Debts    not    due    within    one   year;     pro- 
cedure to  acquire  and  continue  lien, .... 

(c)  Provisions  of  clause  (a)  to  be  retroactive; 

saving    clause,    477 

(d)  Indexing    by    prothonotary ;     filing    cer- 
tified copy  of  praecipe  in  other  counties, 

(e)  Executions       on       judgments       obtained 
against     executors     or     administrators; 
scire   facias    to   surviving   spouse,   heirs, 
et    cetera,    

(f)  Judgments    not     liens    at     death    to    be 

treated  as  debts  not  of  record;   method 
of  continuing  lien,    

(g)  Judgments  which  are  liens  at  death  to  be 

liens  for  five  years  from  death ;    revival,        478 
(h)  Effect  of   section   as   to   mortgages,   and 

bonds  secured  thereby,    

(i)  Executions     on     judgments     obtained     in 

decedent's  lifetime,    

(j)   Distribution  of  proceeds  of  sheriff's  sale, 
(k)   Stay    of    execution    until    application    to 

orphans'  court  for  sale  of  real  estate,.  . . .         479 
(1)  Order  on  executors  or  administrators  to 

apply  to  orphans'   court,    


Section 

Number 

Herein 


412 

413 

414 

4iS 
415 

416 


417 
418 


418 
419 
420 
421 

422 

423 

424 

425 

426 
427 

428 
429 


26o  FIDUCIARIES  ACT— CONTENTS 

1917  Section 

Pamphlet     Number 
Laws          Herein 
Section  16.  Sales  and  mortgages  of  real  estate  for 

the  payment  of  debts  of  decedents, 430 

(a)  Duty  of  executor  or  administrator  to  sell 
real    estate    where    personal    estate    and 

rents  are  insufficient  to  pay  debts, 430 

(b)  Power  of  orphans'  court  to  authorize  sale 

or  mortgage  of  real  estate 431 

1.  On  application  of  executor  or  adminis- 
trator,    432 

2.  On  application  of  executor  or  admin- 

istrator, or  of  creditor,   433 

(c)  Inventory,   statement  of  real  estate,  and 

account  of   debts  to  be  filed, 480               434 

(d)  Refunding   mortgages,    435 

(e)  Appointment  of  master,  436 

(f)  Bond  of  person  carrying  out  decree, 437 

(g)  Public  notice  of  sale,  481               438 

(h)   Securing  unpaid   purchase-money, 439 

(i)  Acknowledgment    of    deeds    and    mort- 
gages   440 

(j)  Removal   or   incapacity   of    fiduciary 441 

1.  Before   conveyance   or   mortgage 441 

2.  Where  there  are  co-fiduciaries, 482               442 

3.  Before  sale,   443 

4.  Effect  of  sale,  deed,  or  mortgage, 444 

5.  Revocation  of  letters,  or  removal  of 

fiduciary,  after  sale,  483               445 

6.  Irregularity  or  defect  in  appointment,  446 
(k)  Conveyance  or  mortgage  where  fiduciary 

is   purchaser   or   mortgagee, 447 

(1)  Real  estate  in  other  counties, 448 

1.  Real  estate  in  county  other  than  that 

the  orphans'  court  of  which  has  juris- 
diction of  accounts,   448 

2.  Real  estate  divided  by  county  line, . .  484               449 
(m)  Private  sales 450 

1.  When   authorized,    450 

2.  Public  notice,  485               451 

3.  Objections  to  sale,  452 

(n)  Return  and  confirmation, 453 

(o)  Discharge  of  liens 454 

(p)   Purchaser  not  bound  to   see  to  applica- 
tion  of   purchase-money,    486               455 


FIDUCIARIES  ACT— CONTENTS 


261 


1917 

Pamphlet 
Laws 


Section  17.  Proceedings  to  relieve  real  estate  from 
lien  of  debts,  

(a)  Petition 

(b)  Hearing  by  court  or  by  master;  notice, 

(c)  Decree;     bonds    by    persons    entitled    to 
real  estate,   

Section  18.  Contracts  of  decedents  for  sale  or  pur- 
chase of  real  estate 

(a)  Petition,   notice,   hearing,   and   decree  of 
specific  performance,    

(b)  Remedy  in  orphans'  court  exclusive, 487 

(c)  Indexing  of  petition  in  judgment  index, 

(d)  Execution  and  effect  of  deed;   decree  for  . 
payment   by   representatives   of    deceased 
vendee,  

(e)  Enforcement  of  parol  contracts, 

(f)  Execution  of  deed  where  grantee  is  execu- 

tor or  administrator,   488 

Section  19.  Notice  of  devise  or  bequest  to  corpora- 
tion,   

Section  20.  Abatement  of  legacies,  

Section  21.  When  legacies  shall  be  payable;  inter- 
est on  legacies,  

Section  22.  Apportionment    of    income, 489 

Section  23.  Security  by  one  entitled  to  income  of 
proceeds  of  sale  of  decedent's  real  estate, 
and  by  legatee  for  life,  for  term  of  years, 
or  other  limited  period,  or  on  condition 
or  contingency;  appointment  of  trustee 
on  refusal,  neglect,  or  inability  to  enter 
security,  

Section  24.  Remedy  for  collection  of  all  legacies  to 

be  exclusively  in  the  orphans'  court, 490 

Section  25.  Procedure  to  enforce  payment  of  legacies 
charged  on  land,  

(a)  Petition,  notice,  decree  for  payment;    sale 
and  distribution  of  proceeds ;    decree  to 
enforce    payment    of    interest 

(b)  Procedure    where    land    lies    in    another 
county  or  is  divided  by  a  county  line, . .         491 

(c)  Bond  by  legatee  or  other  person  entitled 

to  benefit  of  decree   for  payment, 

Section  26.  Discharge  of  residuary  estate  from  an- 
nuities or  legacies  payable  in  future,.. 

(a)  Petition 

(b)  Citation,  hearing,  appointment  of  master,        492 


Section 
Number 
Herein 

456 
456 
457 

458 
459 

459 
460 
461 


462 
463 

464 

465 
466 

467 

468 


469 
470 
471 

471 
472 

473 

474 
474 
475 


262 


FIDUCIARIES  ACT— CONTENTS 


1917 

Pamphlet 
Laws 


(c)  Decree  directing  setting  apart  or  invest- 

ing of  so  much  f  residuary  estate  as 
will  secure  payment  of  annuities  or 
legacies 

(d)  Discharge  of  remaining  estate;    appeals,        493 

(e)  Custody  of  portion  of  estate  set  apart; 
accounts,    surplus    income, 

(f)  Reduction  of  fund  set  apart, 494 

(g)  Rights   to   ultimate  enjoyment   of   resid- 
uary estate  set  apart  not  to  be  affected, 

Section  27.  Discharge  of  real  estate  from  lien  o.f 
legacies  and  other  charges, 

(a)  Wtttre  persons  to  whom  payment  is  due 

cannot    be    found,    

1.  Jurisdiction ;    petition,  and  notice, 

2.  Hearings ;     ascertainment    of    amount 
of  charge;    payment  into  court;    re- 
cording   of    decree,    495 

(b)  Where  charge  has  been  paid,  or  is  pre- 
sumed to  be  paid,  

1.  Jurisdiction, 

2.  Petition,     496 

3.  Citation,   

4.  Hearing,  decree,  recording  of  decree, 

(c)  Cases   not   provided    for  in   clauses    (a) 

and    (b) 

(d)  Distribution  of  moneys  paid   into  court,        497 

(e)  Payment   of    costs,    

(f )  Appeals,    

Section  28.  Powers   of  executors  as   to  real   estate, 

(a)  Mere  authority  to  sell  the  same  as  a  de- 
vise  to   sell,    

(b)  Private  sales,  conveyances  or  leases  au- 
thorized,     

(c)  Powers  not  given  to  any  person  by  name 

or    description    deemed    to    be   given    to 

executors,    but   to    be    exercised    under 

control  of  orphans'  court,   

(d)  Powers  of  surviving,  acting,  or  remain- 
ing executors,  or  administrators  c.  t.  a., 

as    to    real    estate,    498 

Section  29.  Fiduciaries      may      make      conveyances 

through   attorneys 

Section  30.  Purchasers  of  real  estate  from  executors 
or  trustees  not  bound  to  see  to  the  appli- 
cation of  the  purchase-money, 


Section 
Number 
Herein 


476 
477 

478 
479 

480 
481 

481 
481 

482 

483 
483 
484 
485 
486 

487 
488 
489 
490 
491 

491 
492 


493 

494 
495 

496 


FIDUCIARIES  ACT— CONTENTS 


263 


1917 

Pamphlet 
Laws 


Section  31.  Leases   of    real   estate   by    testamentary 

trustees    and    guardians,    499 

Section  32.  Elections  by  guardians  or  trustees,.... 

(a)  Election   to   take   real   estate   in   lieu   of 
proceeds,  

(b)  Election  to  take  money   instead  of   real 
estate  in  which  it  is  directed  to  be  in- 
vested,            5°° 

(c)  Validation  of  previous   elections, 

Section  33.  Procedure  where  real  estate  is   devised 

at  an  appraisement  to  be  made,  or  to  ex- 
ecutor at  a  valuation,  

(a)  Jurisdiction ;    petition,  

(b)  Appointment   of    appraisers;     notice, 501 

(c)  Oath  and  compensation  of   appraisers,.. 

(d)  Return    and    confirmation    of    appraise- 
ment ;    appeals,  

(e)  Citation  to  accept  or  refuse;    decree  ad- 

judging real  estate  to  devisee  or  to  other 
persons;  recording  and  registry  of 
decree,  

(f)  Where  real  estate  is  devised  to  executor 

at  a  valuation,   502 

(g)  Validation    of    previous    decrees, 503 

Section  34.  Designation  of  curtilage  of  building  de- 
vised,     

(a)  Jurisdiction ;    petition,    

(b)  Appointment  and  compensation  of  com- 
missioners,    

(c)  Notice  of  proceedings  of  commissioners; 

report,  confirmation ;  recording  and 
registry  of  decree;  title  of  devisee,.... 

(d)  Payment  of  costs,   504 

Section  35.  Abatement     and     survival     of     actions; 

substitution  of  executors  and  adminis- 
trators ;  pleadings  as  to  assets,  

(a)  Personal  actions,  except  for  slander  and 
libel,    not   to    abate, 

(b)  Executors    and    administrators    may    sue 
and  be  sued  in  personal  actions,  except 
for  slander  and  libel,  

(c)  Pending  actions  of  ejectment  to  enforce 
payment   of   purchase-money,    

(d)  Executors  or  administrators  may  sue  or 
distrain    for   arrearages    of    rent-charge, 
or  other  rent  or  reservation,  due  to  de- 
cedent,            505 


Section 

Number 

Herein 

497 
498 

498 


499 
500 


SOI 
501 
502 
503 

504 


505 

506 

507 

508 
508 

509 


5ii 

512 

513 
SM 

515 


264 


FIDUCIARIES  ACT— CONTENTS 


1917 

Pamphlet 
Laws 


Section 
Number 
Herein 


(e)  Executors  or  administrators  of  life  ten- 
ant may  sue  for  proportion  of  rent  due 
up   to  date  of   death, 

(f)  Executors  or  administrators  may  be  sub- 

stituted in  pending  actions,  and  may  issue 
execution  on  judgment  in  favor  of 
decedent 

(g)  Scire  facias  to  bring  in  executors  or  ad- 
ministrators   of    deceased    party;    con- 
tinuance,    

(h)  Service  of   scire   facias   when   executors 
or     administrators    reside    without    the 

county 

(i)  Actions  not  to  abate  by  death,  dismissal, 
removal,  resignation,  or  renunciation  of 

fiduciaries,    506 

(j)  Failure  to  plead  any  matter  relative  to 
assets,   or  to   reply   thereto,   not   to   be 

deemed   an   admission,    

(k)  Abatement  of  action  by   failure  to   take 
out  letters  in  deceased  plaintiffs  estate, 

Section  36.  Statute  of  limitations  to  run  against  debt 
falling  due  to  estate  of  decedent  after 
his  death,  although  letters  have  not 
been  granted,  507 

Section  37.  Suits  against  fiduciaries  who  do  not 
reside  in  county  the  court  of  which  has 
jurisdiction  of  their  accounts, 

Section  38.  Suits  by  fiduciaries  against  cofiduciary, 

Section  39.  Revival  of  judgment  against  executor 
or  administrator  of  judgment  creditor, 

Section  40.  Compromise  by  fiduciaries  of  claims 
against  estate,  or  questions  as  to  will  or 
distribution 508 

Section  41.  Investments  by  fiduciaries, 

(a)  Legal  investments,   

1.  Investments  in  debt  of  United  States, 

Commonwealth  of  Pennsylvania,  or 
municipalities  o,f  the  Commonwealth, 
or  on  real  securities,  or  in  ground- 
rents  within  the  Commonwealth, 

2.  Investments     in     other     real     estate 
within     the     Commonwealth,     or     in 
debts  of  other  States,  or  counties  or 

cities  thereof,   509 

3.  Fiduciary  not  liable  for  loss  on  such 
investments,   


517 


519 
520 

521 

522 
523 


524 
525 

526 


527 
528 
528 


528 
529 

530 


FIDUCIARIES  ACT— CONTENTS 


265 


1917 

Pamphlet 
Laws 


(b)  Expense    of   procuring   guaranty   of    in- 
vestments,   

Section  42.  Organization  of  corporation  to  carry  on 
decedent's   business,    

(a)  Property   of    estate    may   be    contributed 
in  return  for  stock,  whether  or  not  the 
will  authorizes  carrying  on  business,.... 

(b)  Approval    of    orphans'    court    necessary; 
procedure,     SIO 

(c)  How  stock  shall  be  held;    voting  stock, 
Section  43.  Voting    of    stock    in    corporations    by 

fiduciaries, 

Section  44.  Liability     of     executors     and     adminis- 
trators   for   interest,    S11 

(a)  When   liable 

(b)  Rate    of    interest 

Section  45.  Same    person    shall    not    receive    com- 
missions as  executor  and   trustee, 

Section  46.  Accounts    of    executors,    administrators, 
and  trustees,   

(a)  Accounts  of  executors  and  administrators 
to  be  filed  in  six  months;    executor  or 
administrator   may   be   cited   to   account 
at  end  of  six  months,    

(b)  Orphans'  courts   may   appoint  examiners 
to  make  examinations  of  assets  in  hands 
of  fiduciaries,   

(c)  Claimants    who    have    notified    executors, 

administrators,  or  trustees  to  be  entitled 
to  receive  actual  notice  of  filing  of 
accounts,  

(d)  Register's  duties  as  to  transmission  and 
advertising   of    accounts;     expenses, 512 

(e)  Orphans'    court    may    require    additional 
notice  where  parties  in  interest  reside  out 
of    the    State,    or    where    other    circum- 
stances render  further  notice  expedient, 

(f)  Accounts  not  to  be  confirmed   unless   it 

appears  that  notice  has  been  given, 513 

(g)  Where  trustees'  accounts  shall  be  filed; 
exclusive  jurisdiction  of  orphans'  court, 

(h)  Triennial  accounts  of  trustees, 

(i)  Notice   of   filing  of   trustees'   accounts,.. 

Section  47.  Audits,    

(a)  Rules    of    courts    as    to    publication    of 
notices    of    audits,    


Section 
Number 
Herein 


532 

532 

533 
534 

535 

536 
536 
537 

538 
539 


539 
540 

541 
542 

543 
544 

545 
546 
547 
548 

548 


266 


FIDUCIARIES  ACT— CONTENTS 


1917 

Pamphlet 
Laws 


(b)  Audits  by  court  in  counties  having  sep- 

arate  orphans'   court,    5T4 

(c)  Audits  by  court  or  auditors  in  counties 

not  having  separate  orphans'  court 

Section  48.  Review  of  accounts,  adjudications,  and 

auditors'  reports,  

Section  49.  Distribution  of  estates,  

(a)  Distribution  not  to  be  compelled  within 
six  months;    after  six  months,  distribu- 
tion   may    be    ordered    on    petition    of 
creditor  or  any  person  interested, 

(b)  Distribution  without  audit  of  account  at 

risk  of  executors  or  administrators ; 
distribution  under  order  of  court  to  pro- 
tect executors  or  administrators,  and 
to  be  without  refunding  bonds,..-. 515 

(c)  Distribution     of     estates     not    exceeding 
three  hundred  dollars,   

(d)  Creditor  failing  to  present  claim  at  audit 
not   entitled   to    share   in   distribution,.. 

(e)  Distribution   in   kind,    516 

1.  Court  may  direct  distribution  of  un- 
converted    securities 

2.  Duty  of  fiduciary  to  whom  such  dis- 
tribution    is     made;      application     to 
court  for  authority  to  sell, 

(f)  Distribution   by  employer   of   wages   due 

decedent,     not     exceeding     seventy-five 

dollars,  

Section  50.  Refunding  bonds,   

(a)  Fiduciary  who  has  given  bond  may  re- 

quire bonds  from  persons  to  whom  he 
makes  payment,  

(b)  Limitation  of  actions  on  refunding  bonds,        517 
Section  51.  Transcripts  of  balances  due  by  fiduciaries, 

(a)  Filing  transcripts  in  common   pleas  and 

effect  thereof ;    executions,    

(b)  Satisfaction  and  discharge  of  judgments 

on    transcripts 518; 

Section  52.  Discharge  of  fiduciaries  and  sureties,.. 

(a)  Conditions  of  discharge,   

(b)  Discharge    of    one    or    more    of    joint 
fiduciaries,    


Section 
Number 
Herein 

549 
550 

SSi 
SS2 


552 

553 

554 

555 
556 

556 
557 

558 
559 


559 
56o 

56i 
56i 

562 

563 
563 

564 


FIDUCIARIES  ACT— CONTENTS 


267 


1917 

Pamphlet 
Laws 


Section  53.  Removal  of  fiduciaries,  

(a)  Grounds  for  removal,    

1.  Waste   or    mismanagement;     probable 

insolvency;     failure   to   file  inventory 

or   account,    $19 

2.  Lunacy,  drunkenness,  or  weak-minded- 

ness,      

3.  Sickness,    or    physical    or    mental    in- 
capacity,   

4.  Removal   from  the   State, 

5.  Mismanagement     or     misconduct     by 
guardian, 

6.  Failure  to  pay  over  principal  or  in- 
come, or  to  comply  with  any  order  of 
court,    

7.  Neglect  or  abuse  of  trust,  by  trustee 
for   religious,    educational,    or   chari- 
table purposes,    

8.  Probable    jeopardy    of     interests     of 
estate,    

9.  When  all,  or  a  majority,  of  the  ces- 
tuis    que     trust,    having    life    estate, 
desire    removal    on    any    substantial 
ground 

(b)  Petition,    citation,   orders,   and   decrees,.. 

(c)  Summary  removal  in  cases  of  emergency,        520 

(d)  Decree    removing    one    fiduciary    not    to 
affect    co-fiduciaries,    

(e)  Enforcement    of     orders     and     decrees; 

suits   by   succeeding   fiduciary, 

Section  54.  Requirement  of  security  by  executor,  or 
additional  security  by  other  fiduciary; 
proceedings  by  sureties  to  require  counter 
security,  for  discharge  of  surety,  or  for 
removal  of  fiduciary,  521 

(a)  Proceedings  to  require  additional  security, 

1.  Decree ;    attachment,    

2.  Removal    on    failure   to    comply   with 
decree,    

(b)  Proceeding   by    surety   to   compel   giving 
of   counter-security,    

(c)  Proceeding  by   surety   for   discharge,....        522 
Section  55.  Requirement    of     statement    of    invest- 
ments on  ten  days'  notice;    accounting; 
removal,    


Section 
Number 
Herein 

565 

565 


566 

567 

568 
569 

570 
571 

572 
573 


574 
575 
576 

577 
578 


579 
579 
579 

58o 

58i 

582 


583 


268 


FIDUCIARIES  ACT— CONTENTS 


1917 

Pamphlet 
Laws 


Section  56.  Appointments    of    trustees    to    fill    va- 
cancies,            523 

(a)  Partial  vacancy  in  testamentary  trust,... 

(b)  Entire  vacancy  in  testamentary  trust, 

(c)  Appointment   of   trustee   where   executor 

declines  to  act,  or  is  discharged;  ap- 
pointment of  separate  trustees  for  sev- 
eral parties,  524 

(d)  Jurisdiction  of  orphans'  court  to  be  ex- 
clusive,   

Section  57.  Nonresident  fiduciaries;    corporations  of 
other  States  as  fiduciaries,    

(a)  Powers;  appointment  of  nonresidents  and 
foreign  corporations  as  fiduciaries, 

(b)  Appointment  of   resident  co-trustees, 525 

Section  58.  Foreign  fiduciaries,  

(a)  Foreign    executors,    administrators,    and 
trustees,   

(b)  Foreign   guardians,    

(c)  Powers  of  foreign  fiduciaries  in  general; 

authentication  of  copies  of  wills,  or  other 
authority,  526 

(d)  Powers  of    foreign   executors   and   trus- 
tees as  to  sale  of  real  estate, 

(e)  Revival  of  judgments  by  foreign  execu- 

tors   and    administrators, 527 

(f)  Awards  to  foreign  executors  and  admin- 
istrators,     

(g)  Powers    of    foreign    guardians,    trustees, 
committees,   and  other  fiduciaries,  as  to 
removal   of   property,    

1.  Proof  of   appointment,  and  qualifica- 
tion of  fiduciary,    

2.  Discharge  of   resident  fiduciary 528 

(h)  Award  to  foreign  trustee,  when  all  bene- 
ficiaries for  a  term  of  years  or  for  life 

have  removed  from  the  State, 529 

Section  59.  Guardians 

(a)  Power  of  orphans'  court  to  appoint;    ef- 
fect of  appointment 

(b)  Persons  of  same  religious  persuasion  as 
parents  to  be  preferred  as  guardians  of 
the   person,    

(c)  Executor,    administrator,    or   trustee   not 

to  be  appointed  guardian,   530 


Section 
Number 
Herein 

584 
584 


586 
587 
588 

588 
589 
590 

590 

59i 

592 
593 
594 
595 

596 

596 
597 

598 
599 

599 

600 
601 


FIDUCIARIES  ACT— CONTENTS 


269 


1917 

Pamphlet 
Laws 


Section 
Number 
Herein 


(d)  Parent   not   to    be    appointed    guardian; 
where  estate  is  one  hundred  dollars,  or 
less,    award    may    be    made    to    natural 

guardian    or   person    maintaining   minor,  602 

(e)  Appointment  of  guardians  of  estates  of 

minors  residing  out  of  the  Common- 
wealth,    603 

(f)  Appointment  of  guardians  for  minors  in 

service  of  United  States,  or  whose  ap- 
pearance is  physically  impossible  or  un- 
necessarily expensive,  604 

(g)  Bonds  of  guardians, 605 

(h)  Inventory  to  be  filed  by  guardian, 531  606 

(i)  Allowance  for  support  and  education  of 

minor,    607 

(j)  Accounts  of  guardians,  608 

1.  Triennial  accounts,  608 

2.  Guardian  or  next  friend  may  petition 

to  have  accounts  audited, 609 

3.  Contents   of   petition,    532  610 

4.  Notice  of  filing  of  account  and  peti- 
tion,      611 

5.  Audit    of    account;     appointment    of 

guardian  ad  litem ;    confirmation, ....  612 

6.  Payment  of  costs,  613 

7.  Appeals  and  rehearings,  614 

8.  Final  accounts,   533  615 

(k)  Notice  to  guardian  of  proceeding  affect- 
ing interests  of  minor;    appointment  of 

guardians  ad  litem,    616 

Section  60.  Trustees   durante  absentia,    617 

(a)  Petition    and    appointment, 617 

(b)  Bond,   inventory,   and   accounts, 534  618 

(c)  Duties    of    trustee    when    absent    person 
returns,  or  dies,  within  seven  years,  or 
where  letters  testamentary  or  of  adminis- 
tration are  issued  on  the  ground  of  his 

presumed  death,  619 

Section  61.  Immaterial  variation  from  forms  not 

to  vitiate  proceedings,  620 

Section  62.  Short  title  section,  622 

Section  63.  Repealer,  534-59  623 


270  FIDUCIARIES  ACT— SECTION  i 

353.  TITLE. 

AN  ACT 

Relating  to  the  administration  and  distribution  of  the  estates  of 
decedents  and  of  minors,  and  of  trust  estates;  including  the 
appointment,  bonds,  rights,  powers,  duties,  liabilities,  accounts, 
discharge  and  removal  of  executors,  administrators,  guardians 
and  trustees,  herein  designated  as  fiduciaries;  the  adminis- 
tration and  distribution  of  the  estates  of  presumed  decedents; 
widow's  and  children's  exemptions;  debts  of  decedents,  rents 
of  real  estate  as  assets  for  payment  thereof,  the  lien  thereof, 
judgments  and  executions  therefor,  sales  and  mortgages  of 
real  estate  for  the  payment  thereof,  and  the  discharge  of  real 
estate  from  the  lien  thereof ;  contracts  of  decedents  for  the 
sale  or  purchase  of  real  estate;  legacies,  including  legacies 
charged  on  land;  the  discharge  of  residuary  estates  and  of 
real  estate  from  the  lien  of  legacies  and  other  charges;  the 
appraisement  of  real  estate  devised  at  a  valuation ;  the  ascer- 
tainment of  the  curtilage  of  dwelling  houses  or  other  buildings 
devised;  the  abatement  and  survival  of  actions  and  the  sub- 
stitution of  executors  and  administrators  therein,  and  suits 
against  fiduciaries;  investments  by  fiduciaries;  the  organiza- 
tion of  corporations  to  carry  on  the  business  of  decedents; 
the  audit  and  review  of  accounts  of  fiduciaries;  refunding 
bonds;  transcripts  to  the  court  of  common  pleas  of  balances 
due  by  fiduciaries;  the  rights,  powers  and  liabilities  of  non- 
resident and  foreign  fiduciaries ;  the  appointment,  bonds,  rights, 
powers,  duties  and  liabilities  of  trustees  durante  absentia ;  the 
recording  and  registration  of  decrees,  reports  and  other  pro- 
ceedings, and  the  fees  therefor ;  appeals  in  certain  cases ;  and 
also  generally  dealing  with  the  jurisdiction,  powers  and  pro- 
cedure of  the  orphans'  court  in  all  matters  relating  to  fiduci- 
aries concerned  with  the  estates  of  decedents. 

The  Fiduciaries  Act  became  effective  on  the  first  moment  of  the  day 
on  which  it  purports  to  have  been  signed  by  the  Governor,  June  7,  1917. 
Huber's  Est,  27  Dist  25. 

354.  DEFINITION  OF  "FIDUCIARY." 

SECTION  i.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  Commonwealth  of  Pennsylvania  in  General 
Assembly  met,  and  it  is  hereby  enacted  by  the  authority  of  the 


FIDUCIARIES  ACT— SECTIONS  1-2  (a)  271 

same,  That  as  used  in  this  act,  the  term  "fiduciary"  shall  include 
executors,  administrators,  guardians  and  trustees,  whether 
domiciliary  or  ancillary,  subject  to  the  jurisdiction  of  the  or- 
phans' court  of  any  county  of  this  commonwealth. 

NOTE. — This  is  suggested  by  Section  i  of  the  Act  of  May  3,  1915, 
P.  L.  218,  6  Purd.  7038,  which  relates  only  to  the  reduction  of  bonds. 
It  is  inserted  in  the  new  act  in  order  to  avoid  repeating  in  many  places 
the  words  "executors,  administrators,  guardians  and  trustees." 

355.  GRANTING  OF  LETTERS  TESTAMENTARY  AND 
OF  ADMINISTRATION— JURISDICTION  OF 
REGISTER. 

SECTION  2.  (a)  Letters  testamentary  and  of  administration 
shall  be  grantable  only  by  the  register  of  wills  of  the  county  within 
which  was  the  family  or  principal  residence  of  the  decedent,  at 
the  time  of  his  decease;  and  if  the  decedent  had  no  such  resi- 
dence in  this  commonwealth,  then  ancillary  letters  testamentary 
or  of  administration  shall  be  grantable  only  by  the  register  of  the 
county  where  the  principal  part  of  the  goods  and  estate  of  such 
decedent  within  this  commonwealth  shall  be. 

NOTE. — This  is  derived  from  the  first  part  of  Section  6  of  the  Act  of 
March  15,  1832,  P.  L.  135,  i  Purd.  1074,  which  was  new  in  that  act. 

The  language  as  to  a  decedent  having  no  residence  in  the  commonwealth 
has  been  modified  so  as  to  show  that  it  refers  to  the  granting  of  ancillary 
letters.  See  Sayre's  Exrs.  v.  Helme's  Exrs.,  61  Pa.  299. 

The  provision  that  "letters  testamentary  and  of  administration  shall 
be  grantable  only  by  the  register  of  wills  of  the  county  within  which  was 
the  family  or  principal  residence  of  the  decedent  at  the  time  of  his 
decease,"  refers  to  residence,  not  domicile.  Therefore,  his  "family  or 
principal  residence,"  in  any  conflict  between  two  counties  as  to  the  juris- 
diction of  the  register  of  wills,  must  mean  the  place  where  he  actually 
resides  with  his  family ;  and  this  is  purely  a  question  of  fact. 
In  dismissing  exceptions  the  Court,  per  GEST,  J.,  held : — 
"The  argument  of  the  learned  counsel  for  the  exceptant  is  based  on 
the  theory  that  the  decedent's  domicile  was  in  Philadelphia,  and  that  the 
respondent  failed  to  show  that  the  decedent  intended  to  remain  in  Mont- 
gomery County ;  but  this  is  aside  from  the  real  question.  The  act  clearly 
refers  to  residence,  not  domicile;  it  says,  'the  family  or  principal  resi- 
dence.' A  man  can  have  but  one  domicile,  though  he  may  have  any  number 
of  residences,  therefore,  his  'family  or  principal  residence,'  in  this  conflict 
between  two  counties  as  to  the  jurisdiction  of  the  register  of  wills,  must 
mean  the  place  where  he  actually  resides  with  his  family,  and  this  was 
undoubtedly  in  Glenside.  It  may  be  admitted  that  in  some  of  the  de- 
cisions the  words  residence  and  domicile  are  used  as  synonymous,  but 


272  FIDUCIARIES  ACT— SECTION  2  (o),  (6),  (c) 

strictly,  in  cases  of  administration,  succession,  etc.,  the  law  of  domicile 
applies  when  questions  arise  as  to  the  application  of  the  law  of  different 
states,  or  of  this  State  and  that  of  a  foreign  country.  Such  was  the  case 
in  Barclay's  Estate,  259  Pa.  401,  relied  on  by  the  exceptant,  and  Lowry's 
Estate,  6  Pa.  Superior  Ct.  143.  And  as  domicile  depends  not  only  upon 
the  actual  residence  of  the  person,  but  upon  his  intention  of  retaining  it  as 
his  home,  or  of  changing  it,  great  weight  is  properly  attached  to  his  declara- 
tion of  intention,  or  to  the  facts  from  which  such  intention  may  be  reason- 
ably inferred ;  Dicey  on  Domicile,  chap.  II ;  Guier  v.  O'Daniel,  I  Binn.  349 ; 
Bumpus's  Estate,  23  Dist.  R.  654.  Some  of  the  distinctions  that  may  exist 
between  domicile  and  residence  are  considered  in  Taney's  Estate,  97  Pa.  74, 
and  Raymond  v.  Leishman,  243  Pa.  64,  and  though  many  perplexing 
questions  may  arise  from  these  distinctions,  this  is  not  one  of  them." 

Blessing's  Est.,  29  Dist.  3,  68  P.  L.  78;  15  Del.  224,  affirmed  in  267 
Pa.  380. 

356.  LETTERS     NOT     TO     BE     GRANTED     AFTER 

TWENTY-ONE  YEARS   EXCEPT   ON   ORDER 
OF  COURT. 

(b)  No  letters  testamentary  or  of  administration  shall  in  any 
case  be  originally  granted  upon  the  estate  of  any  decedent,  after 
the  expiration  of  twenty-one  years  from  the  day  of  his  decease, 
except  on  the  order  of  the  orphans'  court,  upon  due  cause  shown. 

NOTE. — This  is  Section  21  of  the  Act  of  1832,  I  Purd.  1075,  which  cor- 
responded to  the  latter  part  of  Section  20  of  the  Commissioners'  Draft. 
The  first  part  of  that  section  of  the  draft  provided  that  letters  should  not 
issue  until  the  expiration  of  five  days  after  the  death. 

The  twenty-one  year  provision  was  new  in  the  Act  of  1832.  The  Com- 
missioners remarked  that  it  did  not  apply  to  cases  where  an  administration 
commenced  had  become  vacant.  In  Hanbest's  Estate,  21  Pa.  Super  Ct. 
427,  however,  it  is  held  that  the  word  "originally"  in  the  second  line  of 
the  section  is  synonymous  with  "in  the  first  instance,"  and  that  the  section 
applies  not  only  to  cases  in  which  no  letters  of  administration  have  been 
previously  granted,  but  also  to  cases  in  which  prior  letters  have  been 
issued. 

The  words  "testamentary  or"  have  been  inserted,  and  "orphans'  court" 
substituted  for  "register's  court." 

See  form  74. 

357.  WHO   ENTITLED  TO   LETTERS   OF  ADMINIS- 

TRATION. 

(c)  Whenever  letters  of  administration  are  by  law  necessary, 
the  register  having  jurisdiction  shall  grant  them  in  such  form 
as  the  case  shall  require,  to  the  widow,  if  any,  of  the  decedent, 
or  to  such  of  his  relations  or  kindred  a.s  by  law  may  be  entitled 


FIDUCIARIES  ACT— SECTION  2  (c)  273 

to  the  residue  of  his  personal  estate,  or  to  a  share  or  shares 
therein,  after  payment  of  his  debts;  or  he  may  join  with  the 
widow  in  the  administration,  such  relations  or  kindred,  or  such 
one  or  more  of  them,  as  he  shall  judge  will  best  administer  the 
estate,  preferring  always,  of  those  so  entitled,  such  as  are  in  the 
nearest  degree  of  consanguinity  with  the  decedent,  and  also 
preferring  males  to  females;  and  in  case  of  the  refusal  or  in- 
competency  of  every  such  person,  to  one  or  more  of  the  prin- 
cipal creditors  of  the  decedent  applying  therefor,  or  to  any  fit 
person  at  his  discretion.1  Provided,  That  if  such  decedent  was 
a  married  woman,  her  husband  shall  be  entitled  to  the  adminis- 
tration, in  preference  to  all  other  persons :  And  provided  further, 
That  in  all  cases  of  an  administration  with  a  will  annexed,  where 
there  is  a  general  residue  of  the  estate  bequeathed,  the  right  to 
administer  shall  belong  to  those  having  the  right  to  such  residue, 
and  the  administration  in  such  case  shall  be  granted,  by  the  reg- 
ister, to  such  one  or  more  of  them  as  he  shall  judge  will  best 
administer  the  estate.2 

NOTE.— This  is  Section  22  of  the  Act  of  March  15,  1832,  P.  I,.  135,  i 
Purd.  1080,  corresponding  to  Section  21  of  the  Commissioners'  Draft.  It 
was  intended  as  an  arrangement  and  condensation  of  the  material  pro- 
visions of  the  Statute  of  21  Henry  VIII,  c.  5,  with  the  addition  of  a  pro- 
viso, derived  from  Section  5  of  the  Act  of  March  21,  1772,  I  Sm.  L.  389, 
giving  the  husband  the  right  to  administer,  and  a  clause  giving  residuary 
legatees  the  right  to  letters  with  the  will  annexed. 

See  form  39. 


1Where  the  register  of  wills  granted  letters  of  administration  to  a 
person  not  a  relative,  heir,  legatee,  creditor,  nor  a  resident  of  the  county 
in  which  the  decedent  lived,  the  letters  will  be  revoked. 

A  register  of  wills  may  under  the  Act  of  June  7,  1917,  P.  L.  447,  Sec- 
tion 2,  clause  (c),  in  the  absence  of  kin  or  creditor,  grant  letters  of 
administration  "to  any  fit  person,  at  his  discretion,"  but  his  action  does 
not  depend  on  the  literal  interpretation  of  clause  (c)  ;  his  discretion  must 
be  legal,  founded  on  good  reason,  and  not  a  wilful  or  arbitrary  exercise 
of  power.  Boyko's  Est.,  49  Pa.  C.  C.  495 ;  21  Lack.  Jur.  161. 

The  Act  of  June  7,  1917,  P.  L.  447,  cannot  be  construed  as  permitting 
a  minor  to  administer  an  estate  and  there  is  nothing  in  the  act  to  indicate 
that  a  minor  has  any  right  of  election. 

When  no  persons  qualified  to  act  apply  for  administration  on  the  estate 
of  a  decedent,  the  register  must  exercise  his  judgment  in  the  selection  of 
a  fit  person. 

18 


274  FIDUCIARIES  ACT— SECTION  2  (c),  (<f) 

The  official  counsel  of  a  register  of  wills  is  not  disqualified  to  act  as 
administrator  of  an  estate,  by  appointment  of  the  register  for  whom  he 
is  counsel. 

The  Court,  per  HENRY,  P.  J.,  specially  presiding,  held: 

"It  is  very  evident  that  only  those  relatives  or  next  of  kin  who  may 
be  entitled  to  the  residue  of  the  personal  estate  of  the  decedent  are  the 
ones  who  are  entitled  to  administration  or  to  elect  an  administrator. 
This  provision  of  the  Act  of  Assembly  could  not  possibly  be  construed 
as  permitting  a  minor  or  a  non  compos  mentis  to  administer  an  estate  and 
there  is  nothing  in  the  Act  to  indicate  that  a  minor  has  any  right  of 
election.  In  the  absence  of  persons  qualified  to  act  applying  for  admin- 
istration, the  Register  must  exercise  his  own  good  judgment  in  the 
selection  of  some  fit  person 

"While  it  is  true  that  the  Register  of  Wills  could  not  act  as  adminis- 
trator, yet,  under  the  Act  of  Assembly  this  is  incident  to  his  office  and 
could  not  be  construed  as  extending  to  his  counsel  or  business  or  official 
associates.  Possibly  there  would  be  greater  reason  why  an  executive 
officer  of  a  corporation  should  not  act  as  administrator  where  that  cor- 
poration is  the  guardian  of  the  minor  inheriting  the  estate."  Hanshaw's 
Est,  22  Dauphin  178  (1919). 

2This  provision  does  not  apply  where  the  testator  asks  "the  Court  to 
appoint  the  executors."  Shontz's  Est.  71  Super.  295. 

See  Sharpless'  Est.,  28  Dist.  746;    15  Del.  16;    20  Luz.  161. 

358.    PETITION  FOR  LETTERS. 

(d)  Every  application  to  any  register  of  wills  for  the  issuance 
of  letters  testamentary  or  of  administration  shall  be  in  the  form 
of  a  petition,  duly  verified  by  affidavit,  setting  forth  the  residence 
and  citizenship  and  the  place,  day  and  hour  of  death  of  the  de- 
cedent, the  estimated  value  of  his  property,  real  and  personal,  the 
location  of  his  real  property,  and,  in  the  case  of  an  intestacy,  the 
names  and  residences  of  the  surviving  spouse,  if  any,  and  of  the 
next  of  kin  of  the  intestate,  together  with  an  averment  that  the 
persons  named  are  the  surviving  spouse  and  all  the  next  of  kin 
of  the  intestate.  In  the  case  of  applications  for  letters  testamen- 
tary, such  applications  shall  set  forth  whether  the  testator  has 
married  and  whether  any  children  have  been  born  to  such  testator 
since  the  execution  of  the  will  offered  for  probate.3 

NOTE.— This  is  a  new  clause,  drafted  in  accordance  with  the  existing 
practice  in  Philadelphia  and  Allegheny  Counties  and  perhaps  in  others. 
As  the  practice  is  understood  not  to  be  uniform  throughout  the  State,  the 
Commissioners  have  considered  it  proper  to  recommend  it  as  a  general  law. 
The  provision  as  to  the  statement  of  citizenship  of  the  decedent  has  been 


FIDUCIARIES  ACT— SECTIONS  2  (d)-3  (a),  (&)  275 

added  to  cover  cases  of  alien  decedents,  where  questions  as  to  notice  to 
consuls,  etc.,  may  arise. 

This  clause  supplies  Sections  i  and  2  of  the  Act  of  May  15,  1874,  P.  L. 
194,  i  Purd.  1075,  which  provide  that  all  persons  applying  for  letters  shall 
file  an  affidavit  as  to  the  day  and  hour  of  the  death,  which  shall  be  filed  by 
the  register.  Those  sections  are  therefore  recommended  for  repeal. 

3 As  amended  by  Act  of  March  24,  1921  (P.  L,.  Si). 

See  forms  i,  10,  12,  13,  35,  40,  42. 

Where  letters  of  administration  have  been  granted  to  a  niece  and  nephew, 
there  being  no  children,  and  without  information  to  the  register  of  other 
nieces  and  nephews,  the  register  may  revoke  said  letters  in  the  interest  of 
all  concerned,  and  to  correct  an  honorable  misunderstanding. 

Sec.  2,  clause  d,  Act  of  1917,  P.  L.  447,  is  mandatory  and  every  applica- 
tion for  letters  should  be  by  petition,  setting  forth,  inter  alia,  names  and 
residences  of  all  the  next  of  kin. 

Sharp  less'  Est,  28  Dist.  746,  15  Del.  16,  20  Luz.  161. 

359.  LETTERS  OF  ADMINISTRATION  C.  T.  A.  AND 

D.  B.  N.,— GRANTING  LETTERS  C.  T.  A. 

SECTION  3.  (a)  Whenever  the  executors  named  in  any  last 
will  and  testament  shall  all  refuse  or  renonuce  the  trust  and  exe- 
cution thereof,  the  register  having  jurisdiction  as  aforesaid  may 
receive  the  probate  of  such  will,  and  grant  letters  of  administra- 
tion with  it  annexed,  to  the  persons  by  law  entitled  thereto. 

NOTE. — This  is  Section  18  of  the  Act  of  1832,  i  Purd.  1074,  which  corre- 
sponded to  Section  17  of  the  Commissioners'  Draft,  and  was  intended  to 
provide  "for  cases  of  intestacy  by  the  renunciation  of  the  trust  of  execution 
by  all  the  executors."  The  Commissioners  referred  to  the  Statute  of  21 
Henry  VIII,  c.  5,  Section  3,  Rob.  Dig.  250,  as  mentioning  this  case. 

See  forms  12,  42. 

360.  GRANTING  OF  LETTERS  D.  B.  N.  C.  T.  A. 

(&)  Whenever  a  sole  executor,  or  the  survivor,  of  several  ex- 
ecutors, shall  die,  leaving  goods  or  estate  of  his  testator  unadmin- 
istered,  the  register  having  jurisdiction  shall,  notwithstanding  such 
executor  may  have  made  his  last  will  and  testament,  and  appointed 
an  executor  or  executors  thereof,  grant  letters  of  administration  of 
all  such  goods  and  estate,  in  the  same  manner  as  if  such  executor 
had  died  without  having  made  any  testament  or  last  will ;  and  the 
executor  of  such  deceased  executor  shall  in  no  case  be  deemed 
executor  of  the  first  testator. 


276  FIDUCIARIES  ACT— SECTION  3  (&),  (c),  (d) 

NOTE.— This  is  Section  19  of  the  Act  of  March  15,  1832,  P.  L.  135,  i 
Purd.  1074,  which  corresponded  to  Section  18  of  the  Commissioners'  Draft. 

By  the  common  law,  the  trust  of  the  sole  executor  might  be  transmitted 
to  his  executor,  and  the  same  was  true  as  to  the  survivor  of  several  execu- 
tors. The  Act  of  March  12,  1800,  3  Sm.  L.  433,  Section  3,  enabled  admin- 
istrators with  the  will  annexed  to  execute  the  powers  conferred  -upon 
executors  by  will  in  relation  to  lands.  The  Commissioners  remarked: 
"This  act  having  thus  provided  for  the  cases  in  which  the  powers  of  the 
executor  of  an  executor  are  most  important,  it  is  proposed  by  this  section 
to  abolish  his  powers  altogether  *  *  *  We  will  only  add  that  conveni- 
ence in  the  administration  of  the  two  estates  and  the  security  of  creditors 
and  others  interested  in  different  rights  recommend  the  adoption  of  the 
section  under  consideration." 

See  form  13. 

361.  GRANTING  OF  LETTERS  D.  B.  N. 

(c)  In  all  cases  where  the  administration  of  the  estate  of  any 
decedent  shall  become  vacant,  by  reason  of  death  or  of  any  decree 
of  the  orphans'  court,  or  from  any  other  cause,  the  register  having 
jurisdiction  shall,  on  proper  proof  being  made  of  the  fact,  grant 
new  letters,  in  such  form  as  the  case  shall  require,  to  the  person 
or  persons  by  law  entitled  thereto. 

NOTE. — This  is  Section  20  of  the  Act  of  1832,  I  Purd.  1075,  which  corre- 
sponded to  Section  19  of  the  Commissioners'  Draft,  and  was  new  in  the 
Act  of  1832.  It  is  now  changed  by  providing  for  vacancies  caused  by 
death  or  otherwise,  and  by  substituting  "proper  proof  being  made  of  the 
fact"  for  "being  certified  thereof,  under  the  seal  of  the  said  court." 

362.  POWERS  OF  EXECUTORS  EXTENDED  TO  AD- 

MINISTRATORS C.  T.  A. 

(d)  All  and  singular  the  powers,  duties  and  liabilities  of  execu- 
tors are  hereby  extended  to  administrators  with  a  will  annexed. 

NOTE. — This  is  Section  67  of  the  Act  of  February  24,  1834,  P.  L.  73,  I 
Purd.  noo,  which  was  introduced  in  that  act  to  avoid  the  necessity  of 
particular  provisions  in  the  various  sections.  After  "singular,"  the  words 
"the  provisions  of  this  act  relative  to"  have  been  omitted. 

It  seems  unnecessary  to  re-enact  Section  i  of  the  Act  of  February  7, 
1814,  P.  L.  44  (6  Sm.  L.  102),  which  provides: — 

"All  the  powers  and  authorities  vested  in  administrators  with  the  will 
annexed,  in  case  of  death,  refusal,  renouncing  or  dismissal  of  the  executor 
or  executors,  by  the  act  to  which  this  is  supplementary,  be  and  are  hereby 
extended  to,  and  vested  in  administrators  with  the  will  annexed,  in  those 
cases  where  no  executor  or  executors  shall  have  been  appointed,  to  be 


FIDUCIARIES  ACT— SECTION  3  (d),  (<?)  277 

exercised  as  fully  as  any  executor  or  executors  might  have  done  if  ap- 
pointed." 

An  administrator  with  a  will  annexed  has  the  same  powers  and  duties 
of  an  executor  who  made  a  contract  for  the  sale  of  real  estate,  and  can 
carry  out  such  contract  and  give  a  good  and  legal  title,  since  he  has  given 
bond  at  the  time  of  qualifying.  Kiefer's  Adm'r.  v.  Jones,  50  Pa.  C.  C.  269, 
(s.  c.  sub  nom  Daniel  v.  Jones),  30  Dist.  633. 

363.     POWERS  OF  ADMINISTRATORS  D.  B.  N. 

(e)  Administrators  de  bonis  non,  with  or  without  a  will  an- 
nexed, shall  have  power  to  demand  and  recover  from  their  prede- 
cessors in  the  administration,  or  their  legal  representatives,  all 
moneys,  goods  and  assets  remaining  in  their  hands  due  and  be- 
longing to  the  estate  of  the  decedent,  and  to  commence  and  prose- 
cute actions  upon  promises  made  to  such  predecessors  in  their 
representative  character,  and  to  take  and  defend  appeals  and  sue 
forth  and  defend  writs  of  scire  facias  and  writs  of  execution 
upon  judgments,  obtained  by  or  in  the  name  of  the  executors  or 
administrators  into  whose  place  they  may  have  come,  and  also 
to  proceed  with  and  perfect  all  unexecuted  executions,  which  may 
have  been  issued  thereon  at  the  instance  of  such  predecessors: 
Provided,  That  when  any  suit  shall  have  been  brought  by  an  ad- 
minstrator  de  bonis  non  for  the  recovery  of  moneys,  goods  or 
assets,  remaining  in  the  hands  of  his  predecessors,  or  their  legal 
rpresentatives,  before  they  shall  have  settled  their  final  adminis- 
tration account,  the  court  in  which  such  action  shall  be  brought 
shall  have  power  to  stay  the  proceedings  therein,  on  the  defend- 
ants' filing  such  an  account  in  the  register's  office  of  the  proper 
county  within  a  reasonable  time  to  be  fixed  by  said  court,  until 
said  account  shall  have  been  finally  settled  and  confirmed;  and 
on  the  production  of  a  certified  copy  of  said  account,  so  settled 
and  confirmed,  the  court  in  which  such  suit  shall  be  pending  is 
hereby  authorized  and  required  to  render  judgment  for  the  bal- 
ance which  shall  thereby  appear  to  be  due  to  either  party. 

NOTE. — This  is  Section  31  of  the  Act  of  1834,  i  Purd.  1112,  which  corre- 
sponded to  Section  32  of  the  Commissioners'  Draft,  except  that  the  draft 
did  not  include  the  proviso.  "Take  and  defend  appeals"  has  been  inserted 
and  "of  error"  omitted.  The  provision  as  to  time  for  filing  the  account  is 
changed.  The  Act  of  1834  makes  it  "twenty  days  previous  to  the  term  next 
succeeding  that  to  which  the  writ  was  returnable."  "Confirmed"  has  been 
substituted  for  "adjusted." 


278  FIDUCIARIES  ACT— SECTIONS  3  (*)-4 

Section  32  of  the  draft  considerably  enlarged  the  provisions  of  the  Stat- 
ute of  17  Car.  II,  Chapter  8,  Section  n,  and  was  intended  to  remedy  a 
defect  in  the  law.  The  Commissioners  referred  to  the  decision  in  Allen 
v.  Irwin,  i  S.  &  R.  549,  that  an  administrator  d.  b.  n.  could  not  maintain 
assumpsit  against  the  administrators  of  a  deceased  executor. 

364.  GRANTING  OF  LETTERS  DURANTE  MINORI- 
TATE,  DURANTE  ABSENTIA  AND  PEN- 
DENTE  LITE. 

SECTION  4.  The  register  of  wills  having  jurisdiction  may,  when 
the  circumstances  of  the  case  require,  grant  to  any  fit  person  or 
persons  letters  of  administration  durante  minoritate,  durante 
absentia,  or  pendente  lite,  security  to  be  entered  as  in  other  cases 
of  administration. 

NOTE. — This  is  a  new  section,  giving  express  sanction  to  powers  now 
exercised  by  registers  as  to  letters  durante  absentia  and  pendente  lite,  and 
superseding  Section  23  of  the  Act  of  March  15,  1832,  P.  L.  135,  i  Purd. 
1083,  which  provides : — 

"Whenever  all  the  executors  named  in  any  last  will  and  testament,  or  all 
the  persons  entitled  as  kindred  to  the  administration  of  any  decedent's 
estate,  shall  happen  to  be  under  the  age  of  twenty-one  years,  it  shall  be 
lawful  for  the  register  to  grant  administration  as  aforesaid  to  any  other 
fit  person  or  persons,  subject  nevertheless  to  be  terminated  at  the  instance 
of  any  of  the  said  minors  who  shall  have  arrived  at  the  full  age  of  twenty- 
one  years." 

In  a  dispute  over  the  probate  of  a  will,  the  grant  of  letters  of  admin- 
istration pendente  lite  by  the  register  of  wills  was  held  void  where  on 
petition  the  orphans'  court  had  directed  the  register  to  certify  the  record 
for  adjudication,  but  prior  to  the  service  of  said  order  an  order  had  been 
made  by  the  register  but  the  oath  had  not  been  taken  or  bond  given  until 
after  such  service.  The  Fiduciaries  Act  of  1917,  P.  L.  447,  requires  that 
the  oath  must  be  administered  and  a  bond  given  before  letters  of  adminis- 
tration can  issue. 

"Jurisdiction  is  in  the  register  to  grant  letters  of  administration  gener- 
ally, including  letters  pendente  lite  under  special  circumstances  and  the  pro- 
ceeding is  well  defined. 

Section  4  of  the  Fiduciaries  Act  of  1917  provides  that  the  register  'may, 
when  the  circumstances  of  the  case  require,  grant  to  any  fit  person  or 
persons  letters  *  *  *  pendente  lite,  security  to  be  entered  as  in  other 
cases  of  administration.'  But  Section  7,  Par.  a,  of  said  act,  provides  that 
before  the  register  issue  letters,  he  shall  administer  an  oath  in  the  pre- 
scribed form:  Section  8,  Par.  a,  provides  that  upon  his  grant  of  letters 
he  shall  take  a  bond  as  there  required.  If  he  grant  such  letters  (Par.  d 
of  said  section)  without  these  prerequisites  'such  letters  shall  be  void.' 
Letters  are  not  to  issue  unless  bond  has  been  previously  given,  Moore  v. 
Rahm,  2  S.  &  R.  375;  in  such  a  case  bv  the  very  terms  of  the  law  the 


FIDUCIARIES  ACT— SECTIONS  4-5-6  (a)  279 

letters  are  void,  Bradley  v.  The  Commonwealth,  31  Pa.  522 ;  failure  to  take 
the  oath  at  the  time  may  not  per  se  void  the  grant  of  letters,  but  failure 
to  give  the  bond  has  a  very  different  effect,  Beeber's  Appeal,  99  Pa.  596; 
the  register  having  made  his  selection,  Hawkins'  Orphans'  Court  Practice, 
Section  28,  the  next  steps  are  the  oath,  and  the  bond,  'and  thereupon 
issue  letters  of  administration.' 

"The  register's  appointment  as  of  October  iQth  was  not  a  grant  of  letters, 
it  had  no  status  as  such  by  law  or  in  practice."  Henry's  Est.,  30  Dist. 
945,  69  P.  L.  J.  737J  35  York  122. 

365.  ACTS  OF  ADMINISTRATOR  OR  EXECUTOR  NOT 

TO  BE  IMPEACHED  ALTHOUGH  WILL  OR 
LATER  WILL,  BE  DISCOVERED. 

SECTION  5.  All  such  acts  of  administration  as  would  be  in  due 
course  of  law,  in  case  of  intestacy,  if  done  in  good  faith  and 
without  notice  of  a  will,  and  all  such  acts  of  any  executor  as 
would  be  in  due  course  of  law,  if  the  will  under  which  letters 
testamentary  were  issued  were  the  last  will  of  the  testator,  and  if 
done  in  good  faith  and  without  notice  of  a  later  will,  shall  not  be 
impeached,  though  a  will,  or  a  later  will,  should  afterwards  be  dis- 
covered and  established. 

NOTE. — This  Section  68  of  the  Act  of  1834,  i  Purd.  uoo,  enlarged  to  in- 
clude acts  of  an  executor  under  a  former  will  in  case  a  later  will  is  dis- 
covered. The  Commissioners  of  1830  remarked  that  this  section  was  "in 
conformity  with  the  obvious  rules  of  equity  and  justice,  and  with  the 
jurisprudence  of  some  of  our  sister  states." 

366.  PRESUMED  DECEDENTS,— PETITION  AND  AD- 

VERTISEMENT. 

SECTION  6.  (a)  Whenever,  hereafter,  any  person  shall  be  pre- 
sumed to  be  dead,  on  account  of  absence  for  seven  or  more  years 
from  the  place  of  his  or  her  last  domicile,  whether  the  same  be 
within  this  commonwealth,  or  in  any  other  state,  territory  or  pos- 
session of  the  United  States,  or  in  any  foreign  country,  any  per- 
son entitled  under  the  last  will  and  testament  of  such  presumed 
decedent  or  under  the  intestate  laws  to  any  share  in  his  or  her 
estate  within  this  commonwealth,  or  the  escheator  for  the  com- 
monwealth, may  present  a  petition  to  the  orphans'  court  of  the 
county  of  such  person's  last  residence  or,  where  the  presumed 
decedent  was  a  rion-resident  of  this  commonwealth,  in  the  or- 
phans' court  of  the  county  where  the  greater  part  of  his  property 
within  this  commonwealth  may  be  situated,  setting  forth  the  facts 
which  raise  the  presumption  of  death.  The  said  court,  if  satis- 


28o  FIDUCIARIES  ACT— SECTION  6  (a),  (&) 

fied  as  to  the  person  who  would  be  entitled  to  letters  testamentary 
or  of  administration  were  the  presumed  decedent  in  fact  dead, 
shall  cause  to  be  advertised,  in  a  newspaper  published  in  said 
county,  once  a  week  for  four  successive  weeks,  together  with  such 
other  advertisement  as  the  court,  according  to  the  circumstances 
of  the  case,  shall  deem  expedient  or  advisable,  the  fact  of  such 
application,  together  with  notice  that  on  a  day  certain,  whch  shall 
be  at  least  two  weeks  after  the  last  appearance  of  said  advertise- 
ment, the  court,  or  master  appointed  by  the  court  for  that  pur- 
pose, will  hear  evidence  concerning  the  alleged  absence  of  the  pre- 
sumed decedent,  and  the  circumstances  and  duration  thereof. 

NOTE. — This  is  a  combination  of  Section  i  of  the  Act  of  June  24,  1885, 
P.  L.  155,  i  Purd.  1075,  and  Section  I  of  the  Act  of  May  28,  1913,  P.  L. 
369,  5  Purd.  5886. 

The  latter  act  is  followed  in  providing  for  application  in  the  first  in- 
stance to  the  orphans'  court.  This  seems  to  be  the  better  practice,  as  there 
is  no  apparent  reason  for  applying  to  the  register  and  having  him  at  once 
certify  the  matter  to  the  court. 

The  section  has  been  altered  so  as  to  include  cases  where  the  last  domi- 
cile was  outside  the  commonwealth.  This  is  now  covered,  but  as  to  ancil- 
lary letters  only,  by  Section  9  of  the  Act  of  May  28,  1913,  P.  L.  373,  5 
Purd.  5884,  5886. 

The  provisions  have  been  extended  to  cases  where  the  presumed  de- 
cedent has  left  a  will,  which  is  produced  in  the  first  instance.  The  case 
of  production  of  a  will  after  letters  of  administration  have  been  granted 
is  covered  by  clause  (fe)  of  this  section  (see  376  infra).  A  provision  for 
additional  advertisements  has  been  inserted. 

"The  Act  of  1855  as  well  as  the  Fiduciaries  Act  provides  a  complete 
system  for  the  distribution  of  estates  of  supposed  decedents  with  a  view 
to  protect  and  safeguard  the  rights  of  all  parties  concerned."  Twining's 
Est.,  37  Montg.  116. 

367.    PETITION  AND  ADVERTISEMENT  AS  TO  AN- 
CILLARY  LETTERS. 

(&)  Whenever,  hereafter,  letters  of  administration  or  letters 
testamentary  shall  have  been  granted  in  any  other  state,  territory 
or  possession  of  the  United  States,  or  in  any  foreign  country,  on 
the  estate  of  a  resident  thereof,  presumed  to  be  dead,  on  account 
of  absence  for  seven  or  more  years  from  the  place  of  his  last 
domicile,  it  shall  be  lawful  for  the  person  or  persons,  or  trust 
company,  to  whom  such  letters  have  been  granted,  to  present  a 
petition  to  the  orphans'  court  of  the  county  within  this  common- 
wealth in  which  all,  or  the  greater  portion,  of  the  estate  of  said 


FIDUCIARIES  ACT— SECTION  6(6),    (c)  281 

presumed  decedent  may  be  found,  accompanied  by  a  complete 
exemplification  of  the  record  of  the  grant  of  such  letters,  praying 
for  the  grant  of  ancillary  letters  testamentary  or  of  administra- 
tion upon  the  estate  of  such  presumed  decedent,  situate,  owing  or 
belonging  to  him  within  this  commonwealth.  The  said  court,  if 
satisfied  that  the  person  or  trust  company  proposed  in  such  pe- 
tition would  be  a  fit  person  or  company  to  whom  such  letters 
might  be  issued,  shall  cause  publication  to  be  made,  in  the  man- 
ner and  for  the  period  as  provided  in  clause  (a)  of  this  section,  of 
the  fact  of  such  application,  together  with  notice  that  on  a  day 
certain,  which  shall  be  at  least  two  weeks  after  the  last  appear- 
ance of  said  advertisement,  the  court,  or  a  master  appointed  for 
the  purpose,  will  hear  evidence  concerning  the  alleged  absence 
of  the  presumed  decedent,  and  the  circumstances  and  duration 
thereof. 

NOTE.— This  is  Section  i  of  the  Act  of  May  28,  1913,  P.  L.  373,  5  Purd. 
5884,  somewhat  condensed  and  with  slight  changes  in  wording  so  as  to 
make  the  language  uniform  with  that  of  the  last  preceding  clause.  The 
definition  of  "the  proper  county"  contained  in  Section  8  of  the  Act  of 
1913  is  embodied  in  the  present  clause;  and  the  provision  for  application 
to  the  register  of  wills  is  omitted.  Provision  is  made  for  the  grant  of 
ancillary  letters  to  others  than  the  domiciliary  executor  or  administrator. 
Cross-reference  is  made  to  the  last  preceding  clause  as  to  manner  and  time 
of  advertisement. 

Section  2  of  the  Act  of  1913,  5  Purd.  5885,  providing  for  affidavits  by 
residents  of  the  ward,  etc.,  where  the  presumed  decedent  was  last  known 
to  reside,  is  recommended  for  repeal. 

368.     HEARING  BY  COURT,  OR  BY  EXAMINER  AND 
MASTER;    COMPETENCY  OF  WITNESSES. 

(c)  At  the  hearing  in  either  of  the  cases  provided  for  in  the 
preceding  clauses  of  this  section,  the  orphans'  court  shall  take 
such  legal  evidence  as  shall  be  offered,  for  the  purpose  of  ascer- 
taining whether  the  presumption  of  death  is  established,  or  may 
appoint  a  master  to  take  such  testimony  and  report  his  findings 
thereon ;  and  no  person  shall  be  disqualified  to  testify  by  reason 
of  his  or  her  relationship  as  husband  or  wife  to  the  presumed 
decedent,  or  of  his  or  her  interest  in  the  estate  of  the  presumed 
decedent. 

NOTE. — This  embodies  the  provisions  of  Section  2  of  the  Act  of  June 
24,  1885,  P.  L.  155,  i  Purd.  1075,  Section  2  of  the  Act  of  May  28,  1913, 
P.  L.  369,  5  Purd.  5886,  and  Section  3  of  the  Act  of  May  28  1913  P.  L. 
373.  5  Purd.  5885.  The  provision  for  the  appointment  of  a  master  is  new. 


282  FIDUCIARIES  ACT— SECTION  6  (<f),  (<0 

369.  DECREE  THAT  PRESUMPTION  OF  DEATH  IS 

MADE  OUT,  AND  ADVERTISEMENT  THERE- 
OF. 

(d)  If  satisfied,  upon  such  hearing,  or  upon  the  report  of  such 
master,  that  the  legal  presumption  of  death  is  made  out,  the  court 
shall  so  decree,  and  the  court  may  determine  in  such  decree  the 
date  when  such  presumption  arose,  and  shall  forthwith  cause  to 
be  published  for  three  successive  weeks,  in  the  manner  provided  in 
clause  (a)  of  this  section,  a  notice  requiring  the  presumed  de- 
cedent, if  alive,  to  produce  in  court  satisfactory  evidence  of  his 
continuance  in  life,  such  evidence  to  be  produced  within  twelve 
weeks  from  the  date  of  the  last  publication  of  the  notice  in  the 
case  of  an  original  application  for  the  grant  of  letters,  and  within 
four  weeks  from  such  date  in  the  case  of  an  application  for  an- 
cillary letters. 

NOTE. — This  is  a  combination  of  Section  3  of  the  Act  of  June  24,  1885, 
P.  L.  155,  i  Purd.  1076,  Section  3  of  the  Act  of  May  28,  1913,  P.  L.  369, 
5  Purd.  5886,  and  Section  4  of  the  Act  of  May  28,  1913,  P.  L.  373,  5  Purd. 
5885,  the  four  weeks'  limitation  in  the  case  of  ancillary  letters  being  de- 
rived from  the  latter  act.  The  provision  as  to  determining  the  date  when 
the  presumption  arose  is  new. 

370.  CONFIRMATION  OR  VACATION  OF  DECREE. 

(0)  If,  within  said  period,  evidence  satisfactory  to  the  orphans' 
court  of  the  continuance  in  life  of  the  presumed  decedent  shall  be 
presented,  said  decree  shall  be  vacated ;  but  if  such  evidence  shall 
not  be  forthcoming,  such  decree  shall  be  confirmed  absolutely,  and 
it  shall  be  the  duty  of  the  court  to  order  the  register  of  wills  to 
issue  letters  of  administration  to  the  person  thereto  entitled,  or  to 
receive  for  probate  the  last  will  and  testament  of  such  presumed 
decedent  and,  if  duly  proved,  to  admit  the  same  to  probate  and 
issue  letters  testamentary  thereunder;  and  the  said  letters,  until 
revoked,  and  all  acts  done  in  pursuance  thereof  and  in  reliance 
thereupon,  shall  be  as  valid  as  if  the  presumed  decedent  were 
really  dead. 

NOTE. — This  is  a  combination  of  Section  4  of  the  Act  of  June  24,  1885, 
P.  L.  155,  I  Purd.  1076,  Section  4  of  the  Act  of  May  28,  1913,  P.  L.  369,  5 
Purd.  5886,  and  Section  5  of  the  Act  of  May  28,  1913,  P.  L.  373,  5  Purd. 
5885. 

The  word  "vacated"  has  been  substituted  for  "annulled"  in  the  third 
line;  and  the  provision  as  to  probate  is  new. 


FIDUCIARIES  ACT— SECTION  6  (/),  (g)  283 

371.  EFFECT  AS  TO  REAL  ESTATE;  TITLE  OF  PUR- 

CHASER;    BOND    BY    PARTY    SELLING    OR 
CONVEYING. 

(/)  Whenever  the  said  court  shall  enter  a  decree  that  the  pre- 
sumption of  death  of  any  person  has  been  established,  and  such 
decree  shall  be  confirmed  absolutely,  the  real  estate  of  the  pre- 
sumed decedent  shall  pass  and  devolve  as  in  the  case  of  actual 
death,  and  the  persons  entitled  by  will  or  under  the  intestate 
laws  may  enter  and  take  possession.  In  case  the  presumption  of 
death  is  thereafter  rebutted  by  adequate  proof  that  the  presumed 
decedent  is  in  fact  alive,  and  said  decree  is  vacated,  said  real  estate 
shall  revert  to  him  as  fully  as  though  such  decree  had  never  been 
entered,  subject,  however,  to  payment  of  the  costs  and  expenses 
of  the  proceedings  and  advertisement  aforesaid.  Such  decree, 
when  confirmed  absolutely,  may  be  recorded  in  the  office  of  the 
recorder  of  deeds  of  the  proper  county  in  the  deed-book,  and 
shall  be  indexed  by  the  recorder  in  the  grantors'  index  under  the 
name  of  the  decedent,  and  in  the  grantees'  index  under  the  names 
of  the  persons  taking  the  real  estate,  and,  if  so  recorded,  and  the 
persons  taking  the  real  estate  sell  or  mortgage  the  same,  the  pur- 
chaser or  mortgagee  shall  take  a  good  title,  free  and  discharged 
of  any  interest  or  claim  of  the  presumed  decedent;  but  the  per- 
sons taking  such  real  estate  shall  not  sell,  convey  or  mortgage  the 
same  or  any  part  thereof  without  first  giving  bond,  in  an  amount 
to  be  fixed  by  the  orphans'  court  and  with  sureties  to  be  approved 
by  said  court,  conditioned  to  account  for  and  pay  over  to  the 
presumed  decedent,  in  case  he  is  actually  alive,  the  value  of  the 
real  estate  sold  or  conveyed,  or,  in  case  of  the  making  of  a  mort- 
gage, to  pay  the  amount  of  the  mortgage  and  interest  thereon,  or, 
in  case  of  a  foreclosure  of  such  mortgage,  to  account  for  and  pay 
over  the  value  of  the  real  estate  mortgage.  When  the  presumed 
decedent  shall  have  been  absent  and  unheard  of  for  twenty-one 
years,  such  bond  shall  be  taken  without  sureties. 

NOTE.— This  is  Section  5  of  the  Act  of  May  28,  1913,  P.  L.  369,  5  Purd. 
5886,  with  some  changes  in  phraseology,  and  altered  so  as  to  require  bond 
for  the  value  of  the  property  on  any  conveyance,  instead  of  merely  for  the 
proceeds  of  sale,  and  to  cover  the  case  of  a  mortgage  of  the  property. 

372.  ADMINISTRATION     AND     DISTRIBUTION     OF 

ESTATE. 

(g)  The  executor  or  administrator  to  whom  letters  have  been 
issued  upon  the  estate  of  a  presumed  decedent,  as  aforesaid,  shall 


284  FIDUCIARIES  ACT—  SECTION  6  (g),  (A) 

administer  the  estate  in  the  same  manner  and  with  the  same  effect 
as  the  same  would  be  administered  under  existing  laws  of  this 
commonwealth  if  the  presumed  decedent  were  in  fact  dead;  and 
the  orphans'  court,  at  the  audit  of  the  account  of  an  ancillary  ad- 
ministrator of  a  presumed  decedent,  shall  decree  the  balance,  if 
any,  shown  thereby,  to  the  expense  of  administration  and  the  debts 
of  the  presumed  decedent,  due  to  residents  of  this  commonwealth, 
and  the  overplus,  if  any,  to  the  executor  or  administrator  of  said 
presumed  decedent  in  the  foreign  jurisdiction,  for  the  purpose  of 
administration  and  distribution. 

NOTE.—  This  is  Section  6  of  the  Act  of  May  28,  1913,  P.  L.  373,  5  Purd. 
5885,  with  the  insertion  of  the  words  "executor  or"  and  the  omission  of  the 
word  "ancillary"  in  the  first  line,  thus  making  the  provisions  of  the  first 
six  lines  apply  to  original  as  well  as  ancillary  administration.  The  fol- 
lowing parts  are  confined  to  ancillary  administration. 

The  provisos  to  the  section  read  as  follows: 

Provided,  however,  That  before  any  distribution  of  any  such  estate,  the 
alleged  creditors,  residing  in  this  commonwealth,  shall  respectively  give 
sufficient  security  to  be  approved  by  the  said  court,  in  such  sum  and  form 
as  the  court  shall  direct,  with  condition  that,  if  the  presumed  decedent 
shall  in  fact  be  alive,  they  will  respectively  refund  the  amount  received  by 
each,  with  interest  thereon,  if  they  shall  not  be  legally  entitled  to  retain 
the  same:  Provided  further,  That  before  said  court  shall  decree  the  pay- 
ment of  any  overplus  to  the  foreign  executor  or  administrator  as  afore- 
said, said  court  shall  be  satisfied  that  the  presumption  of  death  of  the  pre- 
sumed decedent  has  been  established  in  said  foreign  jurisdiction  according 
to  law." 

(NoTE.  —  The  above  appears  to  be  a  resume  of  the  act  and  is  not  an 
exact  quotation.  —  EDITOR). 

The  repeal  of  these  provisos  is  recommended:  the  first  because  there 
seems  to  be  no  sufficient  reason  to  require  creditors  who  have  been  awarded 
payment  of  their  just  claims  to  refund  the  amounts  because  the  presumed 
decedent  proves  to  be  alive;  the  second  because,  before  directing  the 
isssuance  of  ancillary  letters,  the  court  has  itself  inquired  into  the  estab- 
lishment of  the  presumption  of  death. 

373.  REFUNDING  BONDS;  APPOINTMENT  OF 
TRUSTEE  ON  REFUSAL,  NEGLECT,  OR  INA- 
BILITY TO  GIVE  BOND. 


Before  any  distribution  of  the  proceeds  of  the  estate  of 
such  presumed  decedent,  the  persons,  other  than  creditors,  en- 
titled to  receive  the  same  shall  respectively  give  sufficient  real  or 
personal  security,  to  be  approved  by  the  orphans'  court  having 
jurisdiction,  in  such  sum  and  form  as  the  court  shall  direct,  with 
condition  that  if  the  said  presumed  decedent  shall  in  fact  be  at 


FIDUCIARIES  ACT— SECTION  6  (*),   (i)  285 

the  time  alive,  they  will  respectively  refund  the  amounts  received 
by  each  on  demand,  with  interest  thereon.  If  any  person  or  per- 
sons entitled  to  receive  the  same  shall  refuse  or  neglect  or  be 
unable  to  enter  such  security,  the  orphans'  court  may,  upon  pe- 
tition of  any  person  interested,  and  upon  due  notice  to  all  persons 
interested,  so  far  as  such  notice  can  reasonably  be  given,  appoint 
a  suitable  person  or  corporation  as  trustee  to  receive  and  hold  the 
share  of  the  distributee  refusing  or  neglecting  or  being  unable  to 
enter  security  as  aforesaid  until  the  further  order  of  the  court, 
such  trustee  not  to  be  an  insurer  of  the  trust  fund,  and  to  be 
liable  to  the  person  or  persons  interested  therein  only  for  such 
care,  prudence  and  diligence  in  the  execution  of  the  trust  as  other 
trustees  are  liable  for.  If  the  said  court  shall  be  satisfied,  from 
the  evidence  adduced  at  the  hearing  to  ascertain  whether  the  pre- 
sumption of  death  is  established,  or  from  the  report  of  the  master, 
that  there  is  no  likelihood  of  the  presumed  decedent's  being  still 
alive,  then  the  said  court  may,  at  its  discretion,  accept  refunding 
bonds  from  the  distributees  of  the  presumed  decedent's  estate 
without  requiring  sureties  thereon. 

NOTE. — This  is  the  second  proviso  to  Section  5  of  the  Act  of  June  24, 
1885,  i  Purd.  1076,  as  amended  by  the  Act  of  June  n,  1915,  P.  L.  945,  5 
Purd.  5887,  now  changed  by  excluding  creditors  from  the  requirement  of 
refunding  bonds,  and  by  conforming  the  provisions  where  no  bond  is  given 
to  those  of  Section  23  of  this  draft  relating  to  security  by  legatees  for  life, 
founded  on  the  Act  of  May  17,  1871,  P.  L,.  269. 

The  present  clause  also  covers  Section  7  of  the  Act  of  May  28,  1913, 
P-  L.  373,  5  Purd.  5886. 

Under  the  Act  of  June  n,  1915  (P.  L.  945),  amending  the  Absentee  Act 
of  1885,  which  amendment  was  incorporated  in  the  Fiduciaries  Act  of 
1917,  it  is  within  the  discretion  of  the  orphans'  court  when  satisfied  from 
evidence  adduced  at  an  audit  that  there  is  no  likelihood  of  a  supposed  ab- 
sentee decedent  being  alive,  to  decree  distribution  on  refunding  bonds, 
without  security.  Howe's  Estate,  49  Pa.  C.  C.  261,  68  P.  L.  J.,  301,  29 
Dist.  436,  34  York  7. 

374.     VACATION  OF  DECREE;   EFFECT  AS  TO  ACTS 
DONE. 

(i)  The  orphans'  court  may  revoke  the  said  letters  and  vacate 
the  decree  that  the  presumption  of  death  has  been  established,  at 
any  time,  on  due  and  satisfactory  proof  that  the  presumed  de- 
cedent is  in  fact  alive.  After  such  revocation  all  the  powers  of 
the  executor  or  administrator  shall  cease,  but  all  receipts  or  dis- 


286  FIDUCIARIES  ACT— SECTION  6  (»),  (/) 

bursements  of  assets,  and  other  acts  previously  done  by  him, 
shall  remain  as  valid  as  if  the  said  letters  were  unrevoked.  The 
executor  or  administrator  shall  settle  an  account  of  his  adminis- 
tration down  to  the  time  of  such  revocation,  and  shall  transfer  all 
assets,  remaining  in  his  hands,  to  the  person  as  whose  executor 
or  administrator  he  has  acted,  or  to  his  duly  authorized  agent  or 
attorney.  Nothing  in  this  section  contained  shall  validate  the 
title  of  any  person  to  any  money  or  property  received  as  surviving 
spouse,  next  of  kin,  heir,  legatee  or  devisee  of  such  presumed 
decedent,  but  the  same  may  be  recovered  from  such  person,  in  all 
cases  in  which  such  recovery  would  be  had,  if  this  act  had  not 
been  passed. 

NOTE.— This  is  the  first  part  of  Section  5  of  the  Act  of  June  24,  1885, 
I  Purd.  1076,  as  amended  by  the  Act  of  June  u,  1915,  P.  L.  945,  5  Purd. 
5887,  with  slight  changes  in  wording,  the  inclusion  of  executors  as  well  as 
administrators,  and  the  insertion  of  the  provision  for  vacation  of  the  de- 
cree that  the  presumption  of  death  has  been  established. 

375.  INTERVENTION  IN  ACTIONS  BY  PERSON  ER- 
RONEOUSLY SUPPOSED  TO  BE  DEAD; 
OPENING  OF  JUDGMENTS. 

(/)  After  revocation  of  the  letters  and  vacation  of  the  decree 
that  the  presumption  of  death  has  been  established,  the  person 
erroneously  presumed  to  be  dead  may,  on  suggestion  filed  of 
record  of  the  proper  facts,  be  substituted  as  plaintiff  or  petitioner 
in  all  actions  or  proceedings,  at  law,  in  equity,  or  in  any  orphans' 
court,  brought  by  the  executor  or  administrator,  whether  prose- 
cuted to  judgment  or  decree  or  otherwise.  He  may,  in  all  actions 
or  proceedings  previously  brought  against  the  executor  or  admin- 
istrator, be  substituted  as  defendant  or  respondent,  on  proper  sug- 
gestion filed  by  himself,  or  by  proper  service  of  writ  or  other 
process,  but  shall  not  be  compelled  to  go  to  trial  in  less  than  three 
months  from  the  time  of  such  suggestion  filed  or  process  served. 
Judgments  or  decrees  recovered  against  the  executor  or  adminis- 
trator before  revocation  and  vacation,  as  aforesaid,  of  the  letters 
and  decree,  may  be  opened  on  application  by  the  presumed  de- 
cedent, made  within  three  months  from  the  said  revocation  and 
supported  by  affidavit,  denying  specifically,  on  the  knowledge  of 
the  affiant,  the  cause  of  action,  or  specifically  alleging  the  exist- 
ence of  facts  which  would  be  a  valid  defense;  but  if,  within  the 
said  three  months,  such  application  shall  not  be  made,  or  being 
made,  the  facts  exhibited  shall  be  adjudged  an  insufficient  defense, 


FIDUCIARIES  ACT— SECTION  6  (/),  (fc)  287 

the  judgment  or  decree  shall  be  conclusive  to  all  intents,  saving 
the  defendant's  right  to  have  it  reviewed,  as  in  other  cases,  on  ap- 
peal. Notwithstanding  the  substitution  of  the  presumed  decedent 
as  defendant  in  any  judgment  or  decree,  as  aforesaid,  it  shall 
continue  as  a  lien  upon  his  real  estate  in  the  county  for  the  period 
of  five  years  from  the  date  of  its  entry,  as  other  judgments,  unless 
and  until  it  shall  be  set  aside  by  the  court  below,  or  reversed  in 
the  proper  appellate  court. 

NOTE.— This  is  Section  6  of  the  Act  of  June  24,  1885,  P.  L.  155,  i  Purd. 
1076,  altered  by  inserting  the  references  to  vacation  of  the  decree,  by  sub- 
stituting the  words  "on  appeal"  for  "by  certiorari  or  writ  of  error,"  by  sub- 
stituting "the  proper  appellate  court"  for  "the  supreme  court"  in  the  last 
line,  and  by  redrafting  the  last  sentence,  which,  in  the  Act  of  1885,  pro- 
vides that  after  substitution  the  judgment  shall  "become  a  lien"  and  shall 
so  continue  for  five  years,  without  stating  when  the  five  years  shall  begin. 

376.  PROCEDURE  WHERE  WILL,  OR  LATER  WILL, 
IS  PRODUCED  AFTER  LETTERS  HAVE  BEEN 
GRANTED. 

(k)  Whenever,  hereafter,  letters  testamentary  or  of  adminis- 
tration shall  be  issued  upon  the  estate  of  any  person,  presumed 
to  be  dead,  on  account  of  absence  of  seven  years  or  more  from 
the  place  of  his  last  domicile,  in  accordance  with  the  foregoing 
provisions  of  this  section,  the  person  having  custody  of  any  will 
which  may  have  been  left  by  such  presumed  decedent,  in  case 
letters  of  administration  have  been  issued,  or  of  any  later  will, 
in  case  letters  testamentary  have  been  issued,  or  any  creditor  or 
any  person  interested  in  the  estate,  may  file  a  petition  in  the  or- 
phans' court  in  which  the  proceedings  to  establish  the  death  by 
presumption  have  been  held,  as  aforesaid,  setting  forth  the  facts 
of  the  case,  a  copy  of  said  will  or  later  will,  or  an  averment  that 
such  will  exists,  and  the  names  of  all  persons  interested  in  the 
estate  of  the  presumed  decedent.  Upon  the  filing  of  such  petition, 
said  court,  after  due  notice  to  all  parties  in  interest,  may  enter 
an  order  directing  the  register  of  wills  to  receive  proof  in  support 
of  the  averments  of  said  petition  and,  if  established,  to  admit 
said  will  or  later  will  to  probate  and,  if  an  executor  be  named  in 
said  will,  to  revoke  said  letters  of  administration,  or,  in  case  an 
earlier  will  shall  have  been  admitted  to  probate,  to  set  aside  such 
probate  and  revoke  the  letters  testamentary  issued  thereunder. 

NOTE. — This  is  Section  i  of  the  Act  of  April  14,  1905,  P.  L.  153,  5  Purd. 
5884,  altered  by  providing  for  the  filing  of  a  petition  in  the  orphans'  court, 


288  FIDUCIARIES  ACT— SECTION  6  (fe),  (/),  (m) 

instead  of  proceeding  directly  before  the  register,  and  by  inserting  the 
words  "or  an  averment  that  such  will  exists,"  to  cover  the  case  of  refusal 
to  produce  the  will  or  its  unlawful  destruction,  and  also  altered  so  as  to 
include  the  case  of  a  later  will. 

377.  CITATION  BY  REGISTER  TO  PARTIES  INTER- 

ESTED. 

(/)  Thereupon  the  register  of  wills  shall  issue  a  citation  to  the 
person  to  whom  letters  of  administration  or  letters  testamentary 
have  been  issued,  as  aforesaid,  and  to  all  persons  interested  in  the 
estate  of  the  presumed  decedent,  to  appear  upon  a  day  fixed,  and 
to  show  cause  why  the  said  alleged  will  or  later  will  should  not 
be  admitted  to  probate. 

NOTE.— This  is  Section  2  of  the  Act  of  April  14,  1905,  P.  L.  153,  5  Purd. 
5884,  changed  to  conform  to  the  changes  made  in  the  last  preceding  clause. 

378.  PROBATE  OF  WILL,  OR  LATER  WILL;  REVO- 

CATION OF  LETTERS  AND  GRANTING  NEW 
LETTERS. 

(m)  Upon  the  return  of  the  citation,  if  the  register  of  wills 
shall  be  satisfied  from  all  the  evidence  that  may  be  adduced  that 
the  proposed  will  was,  in  fact,  the  last  will  and  testament  made  by 
the  presumed  decedent  before  his  departure  or  disappearance 
from  his  residence,  the  said  will  shall  be  admitted  to  probate  as  if 
the  testator  were  in  fact  dead.  If,  upon  such  probate,  it  appears 
that  an  executor  is  named  in  the  will,  the  letters  of  administra- 
tion previously  granted  shall  be  revoked,  and  letters  testamentary 
shall  be  issued  to  said  executor,  in  the  same  manner  and  form  as 
if  the  testator  were  in  fact  dead,  but  if  no  executor  shall  be 
named  in  such  will,  then  a  certified  copy  of  said  will  shall  be 
attached  to  the  letters  of  administration  theretofore  issued,  or  to 
a  certified  copy  of  such  letters.  Thereafter  the  executor  or  ad- 
ministrator shall  execute  the  said  will  according  to  its  terms,  and 
all  property  of  the  decedent  shall  be  distributed  and  pass,  as 
provided  by  said  will,  to  the  several  legatees  and  devisees  named 
therein.  In  case  an  earlier  will  shall  have  been  admitted  to  probate, 
the  letters  testamentary  issued  thereunder  shall  be  revoked  and 
letters  shall  be  issued  under  the  said  last  will,  or  if  no  executor 
shall  be  named  in  said  last  will,  then  letters  of  administration  with 
the  will  annexed  shall  be  issued  to  the  person  or  persons  entitled 
thereto. 


FIDUCIARIES  ACT— SECTIONS  6  (w),   (n)-7  (o)  289 

NOTE. — This  is  Section  3  of  the  Act  of  April  14,  1905,  as  amended  by 
the  Act  of  June  I,  1915,  P.  L.  689,  5  Purd.  5884,  further  altered  by  bringing 
the  last  proviso  into  the  body  of  the  section,  and  by  providing  for  the  case 
of  a  later  will. 

The  remaining  proviso  reads:  "Provided,  That  nothing  herein  shall 
prevent  the  orphans'  court  from  revoking  the  said  letters,  *  *  *  upon 
satisfactory  proof  that  the  supposed  decedent  is  in  fact  alive;  after  which 
revocation  the  powers  of  the  (executor  or)  administrator,  and  the  rights 
of  the  legatees  and  devisees  under  said  will,  shall  cease;  and  all  receipts 
and  disbursements  of  assets,  and  other  acts  previously  done  by  them  shall 
remain  as  valid  as  if  the  said  letters  were  unrevoked;  and  providing  that 
legatees  and  devisees  may  be  called  upon,  at  any  time,  by  the  supposed 
decedent  to  account  for  any  property  which  they  may  have  received,  re- 
maining in  their  hands,  exactly  as  *  *  *  the  (executor  or)  adminis- 
trator may  be  called  upon  to  account  for  such  property  or  assets." 

It  is  recommended  that  this  be  omitted  as  unnecessary,  its  provisions 
being  covered  by  other  clauses  of  this  section. 

379.  PAYMENT  OF  COSTS. 

(n)  The  costs  attending  the  issuance  or  revocation  of  letters 
shall  be  paid  out  of  the  estate  of  the  presumed  decedent;  and 
costs  arising  upon  an  application  for  letters  which  shall  not  be 
granted  shall  be  paid  by  the  applicant. 

NOTE.— This  Section  7  of  the  Act  of  June  24,  1885,  P.  L.  i55,  I  Purd. 
1077. 

380.  OATHS    OF    EXECUTORS    AND    ADMINISTRA- 

TORS,—FORM. 

SECTION  7.  (a)  Before  any  register  shall  issue  letters  of  admin- 
istration, letters  testamentary,  or  of  administration  with  the  will 
annexed,  he  shall  administer  an  oath  or  affirmation  to  the  person 
or  persons  receiving  the  same,  in  the  following  form,  viz :  You 
do  swear  (or  affirm)  that  as  executor  of  the  last  will  and  testa- 
ment (or  as  administrator  of  the  estate)  of  A.  B.,  deceased,  (as 
the  case  may  be),  you  will  well  and  truly  administer  the  goods  and 
chattels,  rights  and  credits  of  said  deceased,  according  to  law; 
and  also  will  diligently  and  faithfully  regard  and  well  and  truly 
comply  with  the  provisions  of  the  law  relating  to  collateral  inherit- 
ances. 

NOTE. — This  is  Section  14  of  the  Act  of  March  15,  1832,  i  Purd.  1075, 
which,  as  the  Commissioners  remarked,  contained  in  the  form  of  oath  the 
clause  as  to  collateral  inheritance  required  by  Section  5  of  the  Act  of 
April  7,  1826,  P.  L.  227. 

See  form  2. 
19 


290  FIDUCIARIES  ACT— SECTIONS  7  (o),  (&)-«  (<0 

In  a  dispute  over  the  probate  of  a  will,  the  grant  of  letters  of  adminis- 
tration pendente  lite  by  the  register  of  wills  was  held  void  where  on  peti- 
tion the  orphans'  court  had  directed  the  register  to  certify  the  record  for 
adjudication,  but  prior  to  the  service  of  said  order  an  order  had  been 
made  by  the  register  but  the  oath  had  not  been  taken  or  bond  given  until 
after  such  service.  The  Fiduciaries  Act  of  1917,  P.  L.  447  requires  that 
the  oath  must  be  administered  and  a  bond  given  before  letters  of  adminis- 
tration can  issue. 

"Jurisdiction  is  in  the  register  to  grant  letters  of  administration  gen- 
erally, including  letters  pendente  lite  under  special  circumstances  and  the 
proceeding  is  well  defined. 

Section  4  of  the  Fiduciaries  Act  of  1917  provides  that  the  register  'may, 
when  the  circumstances  of  the  case  require,  grant  to  any  fit  person  or 
persons  letters  *  *  *  pendente  lite,  security  to  be  entered  as  in  other 
cases  of  administration.'  But  Section  7,  Par.  a,  of  said  act,  provides  that 
before  the  register  issue  letters,  he  shall  administer  an  oath  in  the  pre- 
scribed form:  Section  8,  Par.  a,  provides  that  upon  his  grant  of  letters 
he  shall  take  a  bond  as  there  required.  If  he  grant  such  letters  (Par.  d 
of  said  section)  without  these  prerequisites  'such  letters  shall  be  void.' 
Letters  are  not  to  issue  unless  bond  has  been  previously  given,  Moore 
v.  Rahm,  2  S.  &  R.  375 ;  in  such  a  case  by  the  very  terms  of  the  law 
the  letters  are  void,  Bradley  v.  the  Commonwealth,  31  Pa.  522;  failure 
to  take  the  oath  at  the  time  may  not  per  se  void  the  grant  of  letters  but 
failure  to  give  the  bond  has  a  very  different  effect,  Beeber's  Appeal,  99 
Pa.  596;  the  register  having  made  his  selection,  Hawkin's  Orphans'  Court 
Practice,  Section  28,  the  next  steps  are  the  oath,  and  the  bond,  'and  there- 
upon issue  letters  of  administration.' 

"The  register's  appointment  as  of  October  I9th  was  not  a  grant  of  letters ; 
it  had  no  status  as  such  by  law  or  in  practice."  Henry's  EsL,  30  Dist. 
945,  69  P.  L.  J.  737;  35  York  122. 

381.  OATH  BY  OFFICER  OF  CORPORATION. 

(fc)  In  all  cases  where  a  corporation  is  or  shall  be  charged  with 
the  execution  of  any  trust,  the  president,  vice-president,  trust 
officer,  secretary,  treasurer  or  actuary  of  such  corporation,  shall 
make  the  oath  or  affirmation  directed  to  be  taken  by  private  per- 
sons in  such  cases. 

NOTE. — This  is  Section  I  of  the  Act  of  February  16,  1877,  P-  L-  3,  4 
Purd.  4923. 

See  forms  2,  n,  46. 

382.  BONDS    OF    EXECUTORS    AND    ADMINISTRA- 

TORS,—FORM    OF   BOND    OF   ADMINISTRA- 
TOR. 

SECTION  8.  (a)  It  shall  be  the  duty  of  every  register  upon  his 
granting  any  letters  of  administration,  domiciliary  or  ancillary, 


FIDUCIARIES  ACT— SECTION  8  (a)  291 

of  the  goods  and  chattels  of  any  person  dying  intestate,  to  take 
a  bond  or  bonds,  from  the  person  or  persons  receiving  such  let- 
ters, with  two  or  more  sufficient  individual  sureties,  or  sufficient 
corporate  security,  or  the  register  may,  in  his  discretion,  permit 
any  corporation  to  which  letters  are  granted  to  give  its  own  bond 
without  surety.  In  fixing  the  amount  of  any  bond,  respect  shall 
be  had  to  the  value  of  the  estate;  and  all  bonds  shall  be  in  the 
name  of  the  commonwealth,  with  a  condition  in  the  following 
form,  viz. :  The  condition  of  this  obligation  is,  that  if  the  above- 
bounden  A.  B.,  administrator  of  all  and  singular  the  goods,  chat- 
tels and  credits  of  C.  D.,  deceased,  do  make,  or  cause  to  be  made, 
a  true  and  perfect  inventory  of  all  and  singular  the  goods,  chattels 
and  credits  of  the  said  deceased,  which  have  come  or  shall  come 
to  the  hands,  possession  or  knowledge  of  him  the  said  A.  B.,  or 
into  the  hands  and  possession  of  any  other  person  or  persons,  for 
him,  and  the  same  so  made,  do  exhibit  or  cause  to  be  exhibited  into 
the  register's  office,  in  the  county  of  ,  within 

thirty  days  from  the  date  hereof,  and  the  same  goods,  chattels  and 
credits,  and  all  other  the  goods,  chattels  and  credits  of  the  said 
deceased,  at  the  time  of  his  death,  which  at  any  time  after  shall 
come  to  the  hands  and  possession  of  the  said  A.  B.,  or  into  the 
hands  and  possession  of  any  other  person  or  persons  for  him,  do 
well  and  truly  administer  according  to  law,  and  further  do  make  or 
cause  to  be  made,  a  just  and  true  account  of  his  said  administra- 
tion, at  the  expiration  of  six  months  from  the  date  hereof,  or 
when  thereunto  required  by  the  orphans'  court,  and  all  the  rest 
and  residue  of  the  said  goods,  chattels  and  credits,  which  shall  be 
found  remaining  upon  the  said  administrator's  account,  the  same 
being  first  examined  and  allowed  by  the  orphans'  court  of  the 
county  having  jurisdiction,  shall  deliver  and  pay  unto  such  per- 
son or  persons  as  the  said  orphans'  court,  by  their  decree  or 
sentence  pursuant  to  law,  shall  limit  and  appoint,  and  shall  well 
and  truly  comply  with  the  laws  of  this  commonwealth  relating  to 
collateral  inheritances,  and  if  it  shall  hereafter  appear  that  any 
last  will  and  testament  was  made  by  the  said  deceased,  and  the 
same  shall  be  proved  according  to  law,  if  the  said  A.  B.,  being 
thereunto  required,  do  surrender  the  said  letters  of  administra- 
tion into  the  register's  office  aforesaid,  then  this  obligation  to  be 
void,  otherwise  to  remain  in  full  force :  Provided,  That  in  every 
case  of  special  administration,  the  form  of  the  foregoing  con- 
dition shall  be  modified  so  as  to  suit  the  circumstances  of  such 
case. 


292  FIDUCIARIES  ACT— SECTION  8  (a) 

NOTE.— This  is  Section  24  of  the  Act  of  March  15,  1832,  P.  L.  139,  i 
Purd.  1077,  altered  by  inserting  "domiciliary  or  ancillary"  in  the  second 
line,  by  providing  for  two  individual  sureties  or  corporate  security  or  the 
bond,  without  surety,  of  a  corporation  to  which  letters  are  granted,  by 
changing  "one  year"  to  "six  months"  as  the  period  for  filing  the  account, 
and  substituting  "at  the  expiration  of"  for  "within,"  and  by  substituting 
"required  by  the  orphans'  court"  for  "legally  required." 

Section  24  of  the  Act  of  1832  corresponded  to  Section  23  of  the  Com- 
missioners draft.  This  was  substantially  the  same  as  Section  i  of  the 
Act  of  April  19,  1794,  3  Sm.  L.  143,  with  some  verbal  alterations  and  the 
addition  of  a  clause  as  to  collateral  inheritances,  and  the  proviso  as  to 
special  administration.  The  draft  fixed  the  time  for  filing  the  inventory  at 
forty  days,  while  the  act  made  it  thirty  days.  The  same  difference  exists 
between  Section  16  of  the  Act  of  1832  and  the  draft. 

See  forms  n,  14,  41,  43. 

See  Cooper's  Est,  29  Dist.  230,  67  R.  L.  J.  17,  20  Lack.  46,  36  Lane.  266. 
32  York  144. 

In  a  dispute  over  the  probate  of  a  will,  the  grant  or  letters  of  adminis- 
tration pendente  lite  by  the  register  of  wills  was  held  void  where  on  peti- 
tion the  orphans'  court  had  directed  the  register  to  certify  the  record  for 
adjudication,  but  prior  to  the  service  of  said  order  an  order  had  been 
made  by  the  register  but  the  oath  had  not  been  taken  or  bond  given  until 
after  such  service.  The  Fiduciaries  Act  of  1917,  P.  L.  447  requires  that 
the  oath  must  be  administered  and  a  bond  given  before  letters  of  adminis- 
tration can  issue. 

"Jurisdiction  is  in  the  register  to  grant  letters  of  administration  gen- 
erally, including  letters  pendente  lite  under  special  circumstances  and  the 
proceeding  is  well  defined. 

"Section  4  of  the  Fiduciaries  Act  1917  provides  that  the  register  'may, 
when  the  circumstances  of  the  case  require,  grant  to  any  fit  person  or 
persons  letters  *  *  *  pendente  lite,  security  to  be  entered  as  in  other 
cases  of  administration.'  But  Section  7,  Par.  a,  of  said  act,  provides  that 
before  the  register  issue  letters,  he  shall  administer  an  oath  in  the  pre- 
scribed form:  Section  8,  Par.  a,  provides  that  upon  his  grant  of  letters 
he  shall  take  a  bond  as  there  required.  If  he  grant  such  letters  (Par.  d 
of  said  section)  without  these  prerequisites,  'such  letters  shall  be  void.' 
Letters  are  not  to  issue  unless  bond  has  been  previously  given,  Moore 
v.  Rahm,  2  S.  &  R.  375 ;  in  such  a  case  by  the  very  terms  of  the  law 
the  letters  are  void,  Bradley  v.  the  Commonwealth,  31  Pa.  522;  failure 
to  take  the  oath  at  the  time  may  not  per  se  void  the  grant  of  letters  but 
failure  to  give  the  bond  has  a  very  different  effect,  Beeber's  Appeal,  99 
Pa.  596;  the  register  having  made  his  selection,  Hawkin's  Orphans'  Court 
Practice,  Section  28,  the  next  steps  are  the  oath,  and  the  bond,  'and  there- 
upon issue  letters  of  administration.' 

"The  register's  appointment  as  of  October  I9th,  was  not  a  grant  of  let- 
ters ;  it  had  no  status  as  such  by  law  or  in  practice."  Henry's  Est.,  30 
Dist.  945,  69  P.  L.  J.  737;  35  York  122. 


FIDUCIARIES  ACT— SECTION  8  (6),  (c)  293 

383.  BOND  OF  ADMINISTRATOR  C.  T.  A. 

(&)  It  shall  be  the  duty  of  the  register  of  wills,  in  granting 
letters  of  administration  with  the  will  annexed,  to  take  a  bond 
as  prescribed  in  the  foregoing  clause,  that  shall  include  adequate 
security  for  the  faithful  accounting  for  the  proceeds  of  any  sales 
of  real  estate  the  administrator  may  make  under  such  will ;  and 
the  sureties  taken  shall  be  liable  therefor,  as  well  as  for  any 
personal  effects,  to  come  into  the  hands  of  the  administrator,  who 
shall  settle  his  account  thereof  before  the  orphans'  court. 

NOTE. — This  is  founded  on  Section  8  of  the  Act  of  April  22,  1856,  P.  L. 
533,  i  Purd.  1080.  The  proviso  is  omitted;  "a  bond  as  prescribed  in  the 
foregoing  clause,  that  shall  include,"  is  inserted ;  "shall"  is  substituted  for 
"may"  in  the  provision  as  to  liability ;  and  "register  and"  is  omitted  before 
"orphans'  court"  in  the  last  line. 

See  forms  11,  14,  41,  44. 

In  holding,  on  the  authority  of  Cornell  v.  Green,  10  S.  &  R.  14,  that 
"An  administrator  with  the  will  annexed  is,  for  every  purpose  connected 
with  the  execution  of  the  will,  put  exactly  in  the  place  of  the  executor 
who  preceded  him ;  and  clothed  with  all  his  rights  and  invested  with  all 
his  capacities  of  collecting  debts,  maintaining  actions,  and  selling  real 
estate  pursuant  to  the  will."  The  court,  citing  the  above  section,  said : 
"When  the  administrator  with  a  will  annexed  was  appointed  in  this  case, 
he  found  an  unexecuted  contract  for  the  sale  of  the  real  estate  in  question. 
He  qualified  by  giving  his  bond.  He  has  the  same  powers  and  duties  that 
the  surviving  executor  who  made  this  contract  had.  The  bond,  under  the 
terms  of  the  statute,  covers  the  sales  of  real  estate  made  under  the  will. 
We,  therefore,  are  of  opinion  that  the  executor  has  the  right  to  carry  out 
this  contract  and  can  give  a  good  and  legal  title  to  the  defendant."  Kiefer's 
Adm'r.  v.  Jones,  50  Pa.  C.  C.  269  (s.  c.  sub  nom.  Daniel  v.  Jones),  30 
Dist.  633- 

384.  FORM   OF  BOND   OF  NON-RESIDENT  EXECU- 

TOR. 

(c)  Before  the  register  shall  issue  letters  testamentary  to  any 
executor,  not  being  an  inhabitant  of  this  commonwealth,  he  shall 
take  from  him  a  bond,  with  two  or  more  sufficient  individual 
sureties,  being  inhabitants  of  this  commonwealth,  or  with  suf- 
ficient corporate  security,  or  the  register  may,  in  his  discretion, 
permit  any  corporation  to  which  such  letters  are  granted  to  give 
its  own  bond  without  surety.  In  fixing  the  amount  of  any  bond, 
respect  shall  be  had  to  the  value  of  the  estate  to  be  administered ; 
and  all  bonds  shall  be  in  the  name  of  the  commonwealth,  with  the 


294 


FIDUCIARIES  ACT— SECTION  8  (c),  (<0 


following  condition,  viz. :  The  condition  of  this  obligation  is,  that 
the  said  A.  B.,  executor  of  the  last  will  and  testament  of  C.  D. 
deceased  shall  make  a  true  and  perfect  inventory  of  all  and  sin- 
gular the  goods,  chattels  and  credits  of  the  said  deceased,  being 
within  this  commonwealth,  which  have  come  or  shall  come  to 
his  hands,  possession  or  knowledge,  or  into  the  hands  and  pos- 
session of  any  other  person  for  him,  and  the  same  so  made  do 
exhibit  into  the  office  of  the  register  of  the  county  of 
within  thirty  days  from  the  date  hereof,  and  the  same  goods  do 
well  and  truly  administer,  according  to  law,  and  make  a  just  and 
true  account  of  all  his  actings  and  doings  therein,  at  the  expiration 
of  six  months  from  the  date  hereof,  or  when  thereunto  lawfully 
required,  and  shall  faithfully  account  for  the  proceeds  of  any 
sales  of  real  estate  he  may  make  under  such  will,  and  shall  well 
and  truly  comply  with  the  laws  of  this  commonwealth  relating  to 
collateral  inheritances  and  in  all  other  respects  with  the  laws  of 
this  commonwealth  relating  to  his  duty  as  executor,  then  this 
obligation  to  be  void,  otherwise  to  remain  in  full  force. 

NOTE. — This  is  Section  16  of  the  Act  of  March  15,  1832,  P.  L.  139,  I 
Purd.  1077,  changing  the  period  for  filing  an  account  from  one  year  to  six 
months,  in  accordance  with  the  change  made  in  the  other  parts  of  the 
present  draft,  changing  "in"  to  "at  the  expiration  of,"  and  inserting  a 
provision  as  to  corporations  giving  their  own  bonds,  and  a  provision  to 
cover  sales  of  real  estate  corresponding  to  clause  (&). 

Section  16  of  the  Act  of  1832  corresponded  to  Section  15  of  the  Com- 
missioners' Draft,  and  was  new  in  the  Act  of  1832.  The  Commissioners  re- 
marked that  the  Act  of  April  3,  1829,  P.  L.  122,  authorizing  proceedings 
to  vacate  letters  testamentary  where  the  executor  had  removed  from  the 
state  and  ceased  to  have  a  known  residence  therein  for  a  certain  period, 
perhaps  prohibited  the  granting  of  letters  testamentary  to  non-residents. 

See  form  45. 

385.     GRANT  OF  LETTERS  WITHOUT  BOND;— LIA- 
BILITY OF  REGISTER  OF  WILLS. 

(d)  If  any  register  shall  grant  letters  testamentary  to  any 
person  not  being  an  inhabitant  of  this  commonwealth,  or  shall 
grant  any  letters  of  administration  to  any  person  or  persons 
whatsoever,  without  having  in  either  case  taken  a  bond  in  the 
manner  hereinbefore  prescribed,  such  letters  shall  be  void,  and 
every  person  acting  under  them  shalf  be  deemed,  and  may  be 
sued,  and  in  all  respects  treated  as  an  executor  of  his  own  wrong ; 
and  the  register  granting  the  same,  and  his  sureties,  shall  be  liable 


FIDUCIARIES  ACT— SECTION  8  (</),  (*)  295 

to  pay  all  damages  which  shall  accrue  to  any  person  by  reason 
thereof. 

NOTE. — This  is  Section  27  of  the  Act  of  1832,  i  Purd.  1078,  which  cor- 
responded to  Section  34  of  the  Commissioners'  Draft.  That  section  was 
principally  derived  from  Section  2  of  the  Act  of  March  27,  1713,  I  Sm.  L. 
81,  and  contained  nothing  new  except  the  extension  of  the  provisions  to 
letters  testamentary  granted  to  non-residents. 

The  only  change  now  made  is  to  omit  "with  sureties,"  in  line  5,  so  as 
to  cover  cases  of  a  corporation  giving  its  own  bond. 

In  a  dispute  over  the  probate  of  a  will,  the  grant  of  letters  of  adminis- 
tration pendente  lite  by  the  register  of  wills  was  held  void  where  on  peti- 
tion the  orphans'  court  had  directed  the  register  to  certify  the  record  for 
adjudication,  but  prior  to  the  service  of  said  order  an  order  had  been  made 
by  the  register  but  the  oath  had  not  been  taken  or  bond  given  until  after 
such  service.  The  Fiduciaries  Act  of  1917,  P.  L.  447,  requires  that  the 
oath  must  be  administered  and  a  bond  given  before  letters  of  administra- 
tion can  issue. 

"Jurisdiction  is  in  the  register  to  grant  letters  of  administration  gen- 
erally, including  letters  pendente  lite  under  special  circumstances  and  the 
proceeding  is  well  defined. 

"Section  4  of  the  Fiduciaries  Act  of  1917  provides  that  the  register  'may, 
when  the  circumstances  of  the  case  require,  grant  to  any  fit  person  or 
persons  letters  *  *  *  pendente  lite,  security  to  be  entered  as  in  other 
cases  of  administration.'  But  Section  7,  Par.  a,  of  said  act,  provides  that 
before  the  register  issue  letters,  he  shall  administer  an  oath  in  the  pre- 
scribed form :  Section  8,  Par.  a,  provides  that  upon  his  grant  of  letters 
he  shall  take  a  bond  as  there  required.  If  he  grant  such  letters  (Par.  d 
of  said  section)  without  these  prerequisites,  'such  letters  shall  be  void.' 
Letters  are  not  to  issue  unless  bond  has  been  previously  given,  Moore 
v.  Rahm,  2  S.  &  R.  375 ;  in  such  a  case  by  the  very  terms  of  the  law 
the  letters  are  void,  Bradley  v.  the  Commonwealth,  31  Pa.  522 ;  failure 
to  take  the  oath  at  the  time  may  not  per  se  void  the  grant  of  letters  but 
failure  to  give  the  bond  has  a  very  different  effect,  Beeber's  Appeal,  99 
Pa.  596;  the  register  having  made  his  selection,  Hawkin's  Orphans'  Court 
Practice,  Section  28,  the  next  steps  are  the  oath,  and  the  bond,  'and  there- 
upon issue  letters  of  administration.' 

"The  register's  appointment  as  of  October  I9th,  was  not  a  grant  of  letters ; 
it  had  no  status  as  such  by  law  or  in  practice."  Henry's  Est.,  30  Dist. 
945,  69  P.  L.  J.  737 ;  35  York  122. 

386.     BOND  OF  EXECUTOR  OR  ADMINISTRATOR  OF 
DECEASED  FIDUCIARY. 

(0)  In  any  case  where  application  is  made  for  letters  testa- 
mentary or  of  administration  on  the  estate  of  a  decedent  who  was 
at  the  time  of  his  death  a  fiduciary,  it  shall  be  within  the  discre- 
tion of  the  register  of  wills  to  whom  such  application  is  made  to 


296  FIDUCIARIES  ACT— SECTION  8  (e),  (/) 

require  the  person  or  corporation  to  whom  such  letters  are  issued 
to  enter,  in  addition  to  any  other  bond  required  by  this  act,  a 
bond  in  a  sufficient  amount,  with  sureties  as  aforesaid,  or,  in  case 
of  a  corporation,  its  own  bond,  with  or  without  sureties,  con- 
ditioned for  the  proper  application  of  the  property  held  by  such 
decedent  as  fiduciary  and  coming  into  the  hands  and  possession 
of  the  person  or  corporation  to  whom  such  letters  are  issued. 

NOTE. — This  is  a  new  clause,  introduced  to  cover  the  case  where  moneys 
or  property  held  by  a  decedent  as  executor,  administrator,  guardian  or 
trustee,  come  into  the  possession  of  his  executor  or  administrator  pending 
the  appointment  of  a  successor  to  the  decedent  in  the  trust. 

387.    EXCEPTIONS  TO  BONDS. 

(/)  All  bonds  taken  by  any  register,  in  pursuance  of  this  act, 
from  any  executor  or  administrator,  may  be  excepted  to  before 
such  register  by  any  person  interested,  in  respect  of  the  sufficiency 
of  the  sureties  therein,  or  the  amount  of  the  bond,  or  for  any 
other  cause.  Whenever  any  such  exception  shall  be  so  made  to 
any  such  bond,  the  register  shall  give  notice  thereof  to  the  execu- 
tor or  administrator  and  require  him  to  appear  before  him  in  a 
reasonable  time,  not  exceeding  ten  days,  and  show  cause  against 
the  allowance  of  such  exception.  If  upon  the  hearing  of  the  ob- 
jections of  all  persons  interested,  and  of  such  executor  or  admin- 
istrator, or  of  such  of  them  as  shall  appear,  such  register  shall  see 
cause,  he  shall  order  such  executor  or  administrator  to  find  ad- 
ditional sureties,  or  to  give  security  in  a  larger  amount,  or  make 
such  other  order  as  the  case  may  require.  If  such  executor  or 
administrator  shall  refuse  to  comply  with  such  order,  or  if  he 
shall  neglect  so  to  do  during  the  space  of  thirty  days  after  the 
making  thereof,  the  register  shall  revoke  the  letters  granted  to 
him,  and  grant  other  letters  in  such  form  as  the  case  shall  re- 
quire, to  the  person  by  law  next  entitled  thereto,  such  person  giv- 
ing to  such  register  the  security  by  him  ordered  as  aforesaid. 
No  such  exception  shall  be  so  made,  or  proceedings  thereunto  be 
had  before  the  register,  after  three  months  elapsed  from  the  time 
of  the  filing  of  a  full  and  perfect  inventory  by  such  executor  or 
administrator  of  the  whole  of  the  estate  in  question. 

NOTE.— This  is  Section  28  of  the  Act  of  1832,  i  Purd.  1078,  which  cor- 
responded to  Section  35  of  the  Commissioners'  Draft  That  section  was 
new  in  the  Act  of  1832  and  was  intended  as  a  substitute  for  so  much  of 
Section  2  of  the  Act  of  March  27,  1713,  i  Sm.  L.  81,  as  related  to  the 
taking  of  insufficient  sureties,  and  to  supply  means  by  which  the  register 


FIDUCIARIES  ACT— SECTIONS  8  (/)-p  (a),  (6)  297 

might  revise  his  own  proceedings  and  correct  inadvertent  and  perhaps 
unavoidable  errors. 

The  present  draft  changes  "one  year"  in  the  last  sentence  to  "three 
months"  in  accordance  with  the  change  in  time  for  filing  the  account.  It 
also  permits  exceptions  "for  any  other  cause." 

Section  2  of  the  Act  of  April  4,  1797,  3  Sm.  L.  296,  2  Purd.  2296,  pro- 
vides :  "In  all  cases  where  a  return  of  nulla  bona  shall  have  been  made  by 
the  sheriff  of  the  proper  county  to  an  execution  against  any  such  executors 
or  administrators,  their  sureties  shall,  on  notice  thereof,  unless  they  can 
show  goods  or  chattels,  lands  or  tenements,  in  some  other  county,  which 
may  be  seized  and  taken  in  execution  by  a  testatum  fieri  facias,  to  satisfy 
the  same,  be  liable  to  pay  the  amount  of  the  debt  and  costs  therein,  in 
actions  brought  against  them  on  the  said  bonds,  and  such  further  proof 
or  evidence  in  support  thereof,  as  by  law  would  have  entitled  the  suitor  or 
suitors  to  recover  his,  her  or  their  demand  of  the  said  executors  or  ad- 
ministrators, de  bonis  propriis :  Provided,  Such  suits  shall  be  instituted 
against  the  sureties,  within  seven  years  after  the  date  of  the  respective 
bonds;  and  the  whole  amount  of  the  sums  of  money  to  be  recovered  there- 
upon shall  not  exceed  the  penalties  of  the  said  bonds  respectively." 

This  was  held,  in  Com.  v.  Patterson,  8  Watts  515,  to  be  limited  to  cases 
of  additional  security  given  by  order  of  court. 

The  appeal  of  this  section  of  the  Act  of  1797,  as  unnecessary,  is  recom- 
mended. 

388.  BONDS  OF  FIDUCIARIES  IN  GENERAL,— SUITS 

ON  BONDS. 

SECTION  9.  (a)  All  bonds  given  or  hereafter  to  be  given  by 
fiduciaries  shall  be  held  in  trust  for  the  use  of  the  commonwealth, 
and  such  person  or  persons  as  may  be  interested  therein;  and 
suits  may  be  brought  thereon,  from  time  to  time,  by  all  persons 
interested  therein,  as  provided  in  the  sixth  section  of  the  act  en- 
titled, "An  act  relating  to  bonds,  with  penalties  and  official  bonds," 
approved  the  I4th  day  of  June,  1836. 

NOTE. — This  is  Section  44  of  the  Act  of  March  15,  1832,  i  Purd.  1079, 
which  did  not  correspond  to  anything  in  the  Commissioners'  Draft,  altered 
by  substituting  for  the  reference  there  made  to  Section  4  of  the  Act  of 
March  28,  1803,  a  reference  to  Section  6  of  the  Act  of  June  14,  1836,  P.  I/. 
639,  I  Purd.  472,  and  by  substituting  "fiduciaries"  for  "executors,  adminis- 
trators or  guardians." 

See  forms,  22,  24. 

389.  REDUCTION  OF  BONDS. 

(&)  Whenever  any  fiduciary  has  heretofore  given,  or  shall 
hereafter  give,  any  bond  conditioned  for  the  due  performance  of 
his  duties,  or  for  the  accounting  for  money  in  his  hands,  such 


298  FIDUCIARIES   ACT— SECTIONS   9  (&),    (O-io 

fiduciary  or  any  creditor,  beneficiary,  or  other  party  in  interest, 
may  present  a  petition  to  the  orphans'  court  of  the  proper  county, 
alleging  that  the  amount  of  such  bond  is  greater  than  the  exigen- 
cies of  said  trust  require  and  setting  forth  the  facts  and  circum- 
stances upon  which  such  allegation  is  based,  and  praying 'that 
such  bond  be  reduced  to  an  amount  which  shall  be  stated  in  the 
petition.  At  the  hearing  of  said  petition,  after  such  notice  as  the 
court  may  require,  if  any,  the  court  may,  at  its  discretion,  reduce 
the  bond  to  such  an  amount  as  it  may  deem  proper  and  necessary 
to  give  adequate  protection  to  all  parties  concerned,  but  not  to  an 
amount  lower  than  that  specified  in  said  petition.  The  costs  of 
said  proceeding  shall,  at  the  discretion  of  the  court,  be  paid  out 
of  the  estate  to  protect  which  said  bond  was  given,  or  by  the 
petitioner. 

NOTE. — This  is  a  combination  of  Sections  2,  3  and  4  of  the  Act  of  May 
3,  1915,  P.  L.  218,  6  Purd.  7038,  changed  so  as  to  provide  that  the  petition 
shall  "allege"  that  the  bond  is  too  large,  instead  of  "setting  forth  that  in 
his  opinion"  this  is  so. 

See  form  75. 

390.  EXPENSE  OF  OBTAINING  BOND  OF  CORPORA- 

TION. 

(c)  Any  fiduciary,  required  by  law  or  by  the  order  of  any 
orphans'  court,  to  give  a  bond  as  such,  may  include  as  a  part  of 
the  lawful  expense  of  executing  his  trust  such  reasonable  sum 
paid  to  a  company,  authorized  under  the  laws  of  this  state  so  to 
do,  for  becoming  his  surety  on  such  bond  as  may  be  allowed  by 
the  court  in  which  he  is  required  to  account,  not  exceeding,  how- 
ever, one  per  centum  per  annum  on  the  amount  of  such  bond. 

NOTE.— This  is  Section  i  of  the  Act  of  June  24,  1895,  P.  L.  248,  4  Purd. 
4914,  altered  by  substituting  "fiduciary"  for  "receiver,  assignee,  guardian, 
committee,  trustee,  executor  or  administrator,"  and  by  inserting  the  word 
"orphans." 

Section  2  of  the  Act  of  1895  reads :  "This  act  shall  take  effect  immedi- 
ately; and  all  acts  and  parts  of  acts  inconsistent  herewith  are  hereby  re- 
pealed." 

The  Act  of  1895  should  be  repealed  only  so  far  as  it  relates  to  fiduciaries 
within  the  scope  of  the  present  act. 

391.  ADVERTISEMENT  OF  GRANT  OF  LETTERS. 

SECTION  10.  The  executors  or  administrators  of  every  decedent 
shall,  immediately  after  the  granting  of  letters  testamentary  or  of 
administration  to  them,  cause  notice  thereof  to  be  given  in  one 


FIDUCIARIES  ACT— SECTION  10  299 

newspaper,  published  at  or  near  the  place  where  such  decedent 
resided,  once  a  week,  and  in  the  legal  periodical,  if  any,  designated 
by  rule  of  court  for  the  publication  of  legal  notices,1  during  at  least 
six  successive  weeks,  together  with  their  names  and  places  of  res- 
idence, and  in  every  such  notice  they  shall  request  all  persons 
having  claims  or  demands  against  the  estate  of  the  said  decedent 
to  make  known  the  same,  and  all  persons  indebted  to  the  said 
decedent  to  make  payment,  to  them  without  delay. 

NOTE. — This  is  Section  i  of  the  Act  of  February  24.  1834,  P.  L.  73,  i 
Purd.  1098,  with  the  addition  of  the  provision  as  to  notice  to  debtors. 

Section  14  of  the  Act  of  April  19,  1794,  3  Sm.  L.  143,  provided:  "That 
no  creditor,  who  shall  neglect  to  exhibit  his  account  to  the  executors  or 
administrators  within  twelve  months  after  public  notice  given  in  one  or 
more  of  the  public  newspapers  of  this  state,  and  continued  in  such  public 
newspapers  for  four  weeks,  shall  be  entitled  to  demand  or  receive  any 
dividend  of  such  remaining  assets."  This  is  superseded  by  Section  49  (d) 
of  the  present  draft.  (See  555  infra.) 

See  form  15. 

xThe  portion  in  italics  did  not  appear  in  the  Commissioners'  Draft. 

An  account  will  not  be  audited  until  six  months  after  advertisement  of 
grant  of  letters. 

In  dismissing  exceptions  to  this  ruling  the  court  in  bane  per  GEST,  J.,  held : 

"Letters  of  administration  were  granted  on  Nov.  10,  1917,  and  the  ac- 
count was  filed  on  Sept.  5,  1918.  The  grant  of  letters  was  not  advertised 
as  required  by  the  Fiduciaries  Act  of  June  7,  1917,  Section  10,  P.  L.  447, 
until  Sept.  6,  1918,  and  the  advertisement  expired  on  Oct.  nth,  shortly  be- 
fore the  account  was  called  for  audit. 

The  provisions  of  section  10  of  the  Fiduciaries  Act  are  not  new,  having 
been  previously  enacted  in  section  I  of  the  Act  of  Feb.  24,  1834,  P.  L.  70, 
Purd.  1098,  and  the  commissioners  of  1830,  in  their  second  report,  ob- 
served as  to  this  section  that  it  "enlarged  and  supplied  a  provision  in  the 
Act  of  April  19,  1794,  Section  14,  3  Sm.  Laws,  143,  relative  to  notice  by 
executors  and  administrators  to  creditors  of  the  decedent.  It  is  directory 
to  executors  and  administrators,  and  purports  that  immediate  public 
notice  shall  in  all  cases  be  given  of  the  granting  of  administration.  &c. 
We  think  that  it  is  due  to  creditors  in  all  cases  to  require  it,  and  it  is  to 
the  interest  of  the  heirs  and  kindred  that  it  should  be  done  without  un- 
necessary delay." 

Similar  provisions  are  found  in  the  statutes  of  nearly  if  not  quite  all 
of  the  states,  and,  as  it  is  said  in  Woerner's  American  Law  of  Adminis- 
tration, Section  385,  the  omission  to  publish  the  notice  to  creditors  is  at- 
tended with  serious  consequences. 

This  requirement  of  the  Fiduciaries  Act  is,  therefore,  no  innovation, 
for  in  substantially  its  present  form  it  had  been  in  the  statute  book  for 
eighty-three  years.  It  is  not  necessary  to  vindicate  its  wisdom,  nor  is  it 
necessary  to  decide  the  precise  meaning  of  the  word  "immediately,"  as 


300  FIDUCIARIES  ACT— SECTIONS  10-11  (a)    , 

used  in  the  act,  for  in  this  case  the  advertisement  was  not  published  for 
nearly  ten  months.  When  a  man  dies  and  his  estate  comes  into  the  course 
of  administration,  his  creditors  must  be  ascertained,  and  the  only  practi- 
cable method  is  by  advertisement  in  the  newspapers.  Creditors  have  a 
right  to  this  notice,  and,  inasmuch  as  the  act  requires  immediate  notice  to 
be  given  by  advertisement,  and  as  subsequent  sections  require  the  account 
to  be  filed  at  the  expiration  of  six  months  (formerly  one  year)  after  the 
grant  of  letters,  creditors  have  also  a  right  to  assume  that  the  account 
need  not  be  looked  for  until  six  months  have  expired  from  the  first  in- 
sertion of  the  advertisement.  When,  therefore,  the  advertisement  is  de- 
layed, counsel  should  be  careful  not  to  file  the  account  until  the  expiration 
of  six  months  from  the  date  of  the  first  insertion  of  the  advertisement. 

We  have  said  that  the  Fiduciaries  Act  has  not  introduced  any  innova- 
tion in  the  law  in  this  respect.  It  has,  however,  shortened  the  period  al- 
lowed for  administration  from  one  year  to  six  months,  and,  in  view  of 
this  change,  this  court  by  its  recent  rule  (II,  Sec.  12)  has  required  the  ac- 
countant to  submit  to  the  auditing  judge  at  the  audit  proof  of  publication 
of  notice,  in  order  that  it  may  appear  that  creditors  have  had  all  the  pro- 
tection to  which  they  are  entitled  by  law.  It  appears  that  many  members 
of  the  bar,  including  some  of  long  practice  and  large  experience,  have 
omitted  to  advertise,  but  it  is  clear  that  the  provisions  of  the  statute  can- 
not be  disregarded,  nor  is  it  sufficient  compliance  with  the  law  to  postpone 
the  advertisement  of  the  grant  of  letters  until  the  filing  of  the  account  or 
shortly  before  it.  We  are  of  opinion,  therefore,  that  the  auditing  judge  in 
this  case  was  justified  in  withholding  confirmation  of  the  account.  If  the 
administratrix  is  confident  that  there  remain  no  unpaid  debts  of  the  de- 
cedent, she  may  make  distribution  at  her  own  risk,  but  if  she  desires  the 
protection  of  a  decree  of  the  court  under  section  49  of  the  Fiduciaries  Act, 
the  provisions  of  the  law  must  be  complied  with." 

Cotter's  Est.,  47  Pa.  C.  C.  76,  27  Dist.  1023,  67  P.  L.  J.  19,  and  see  Hay- 
den's  Est,  28  Dist.  39;  Cooper's  Est.,  29  Dist.  230,  67  P.  L.  J.  17,  20 
Lack.  46,  36  Lane.  266,  32  York  144. 

392.    INVENTORY    AND    APPRAISEMENT,— TO     BE 
FILED  IN  THIRTY  DAYS. 

SECTION  n.  (a)  It  shall  be  the  duty  of  the  said  executors  or  ad- 
ministrators to  make  a  true  and  perfect  inventory  of  all  the  goods, 
chattels  and  credits  of  the  deceased,  as  far  as  they  may  know  or 
can  ascertain  them,  and  file  the  same  in  the  register's  office  within 
thirty  days  from  the  time  of  administration  granted:  Provided, 
That  in  the  case  of  a  will  of  a  decedent,  not  resident,  at  the  time 
of  his  decease,  within  this  commonwealth,  proved  in  another  state 
or  in  a  foreign  country,  whereof  letters  testamentary  or  of  ad- 
ministration with  the  will  annexed  may  be  granted  in  this  state, 
or  in  a  case  of  ancillary  administration  of  the  estate  of  a  non- 
resident intestate,  the  inventory  herein  mentioned  shall  be  of  the 


FIDUCIARIES  ACT— SECTION  11  (a),  (6)  301 

goods,  chattels  and  credits  of  the  deceased  within  this  common- 
wealth. 

NOTE.— This  is  Section  15  of  the  Act  of  March  15,  1832,  P.  L.  135,  I 
Purd.  1089,  with  the  insertion  of  the  provision  as  to  ancillary  administra- 
tion of  an  intestate's  estate.  The  provision  as  to  the  filing  of  the  account 
has  been  omitted  here  and  inserted  in  Section  46  (a).  (See  539  infra.) 

See  forms  16,  52. 

In  dismissing  a  petition  to  restrain  a  proposed  sale  of  decedent's  effects 
including  his  alleged  interest  in  a  partnership  which  formed  the  major 
portion  of  the  inventory  the  court  said : 

"Whether,  therefore,  the  petition  is  construed  to  be  an  application  made 
by  a  partner's  individual  estate  or  for  a  partnership  estate,  the  applicant 
is  without  legal  standing  to  maintain  this  proceeding  in  this  Court;  and, 
accordingly,  this  Court  cannot  recognize  the  complaints  of  the  petitioner 
as  to  the  form  or  substance  of  the  said  Inventory  and  Appraisement  (see 
Fiduciaries  Act  of  1917,  P.  L.  447,  clause  (e),  (this  should  apparently  be 
clause  a),  Section  n),  nor  its  standing  to  otherwise  intermeddle  in  or 
interfere  with,,  the  administration  of  the  said  Walter  J.  Brown  estate; 
and  such  incapacity  will  continue  until  the  condition  precedent  has  been 
fulfilled,  to  wit,  by  a  proper,  judicial  determination  of  the  existence  of 
such  partnership  and  a  due  adjudication  of  its  business  and  affairs. 

"Our  action  in  dismissing  the  petitioner's  petition  is.  based  exclusively  on 
absence  of  jurisdiction  in  this  Court;  and  the  same  is  done  without  preju- 
dice to  the  petitioner's  right  to  seek  redress  in  a  tribunal  of  competent 
jurisdiction,  having  authority  to  determine  the  fact  of  partnership,  control 
the  proper  winding  up  of  the  partnership  business  and  affairs,  compel  a  due 
accounting  thereof,  and,  incidentally,  if  proper  grounds  be  established,  to 
restrain  the  consummation  of  the  alleged  wrongful  conversion  and  pro- 
posed sale  of  partnership  property  and  assets ;  enforcing  its  orders  by  at- 
tachments or  through  a  receivership;  Partnership  Act,  March  26,  1915, 
P.  L.  18,  Section  37."  Brown's  Est.,  i  Wash.  149. 

393.    PROCEDURE  TO  COMPEL  FILING  OF  INVEN- 
TORY. 

(b)  In  case  of  the  failure  or  refusal  of  any  executor  or  admin- 
istrator to  file  an  inventory  as  aforesaid,  the  orphans'  court  shall 
have  power,  on  petition  of  any  creditor  of  the  decedent  or  any 
party  in  interest,  to  issue  a  citation  to  such  executor  or  adminis- 
trator to  show  cause  why  he  should  not  file  such  inventory  and, 
if  no  sufficient  cause  be  shown  on  the  return  of  such  citation,  said 
court  may  order  the  filing  of  such  inventory,  and  may  enforce 
such  order  by  attachment  as  in  other  cases. 

NOTE. — This  is  a  new  clause,  introduced  to  provide  a  remedy  in  the  case 
mentioned,  additional  to  the  remedy  by  the  removal  of  the  executor  or 
administrator  under  Section  53  (a)  i  (see  566  infra),  or  by  action  on  the 


302          FIDUCIARIES  ACT— SECTION  u  (fe),  (c),  (rf),  (<?) 

bond  of  an  administrator,  there  being  instances  in  which  the  only  adequate 
remedy  is  by  compelling  the  filing  of  the  inventory. 

394.  BONDS,  NOTES,  OTHER  EVIDENCES  OF  DEBT, 

ALL  CLAIMS  AND  DEMANDS  FOR  MONEY 
AND  OTHER  PERSONAL  PROPERTY  TO  BE 
INCLUDED  IN  INVENTORY. 

(•c)  All  bonds,  notes  and  other  evidences  of  debt,  also  all  other 
claims  and  demands  for  money,  or  any  other  personal  property 
owned  or  held  by  the  deceased  at  the  time  of  his  decease,  shall, 
as  far  as  the  same  may  be  known  to  his  executors  or  adminis- 
trators, be  included  in  the  inventory  to  be  made  and  returned  as 
aforesaid. 

NOTE. — This  is  Section  5  of  the  Act  of  February  24,  1834,  I  Purd.  1090, 
which  corresponded  to  Section  6  of  the  Commissioners'  Draft 

The  section  was  new  in  the  Act  of  1834  and  was  intended  to  correct  a 
practice  of  omitting  bonds  and  other  evidences  of  debt  from  the  inventory 
on  the  ground  that  they  were  not  properly  subjects  of  appraisement. 

395.  DEBT  DUE  BY  EXECUTOR  NOT  RELEASED  BY 

APPOINTMENT,  AND  TO  BE  INCLUDED  IN 
INVENTORY. 

(d)  The  appointment  of  any  person  to  be  an  executor  shall  in 
no  case  be  deemed  a  release  or  extinguishment  of  any  debt  or  de- 
mand which  the  testator  may  have  had  against  him,  but  such  debt 
shall  be  included  in  the  inventory,  and  be  subject  to  distribution 
like  other  personal  estate. 

NOTE, — This  is  Section  6  of  the  Act  of  February  24,  1834,  I  Purd.  1090, 
which  corresponded  to  Section  7  of  the  Commissioners'  Draft.  They  re- 
marked that  it  was  declaratory  of  the  rule  then  prevailing,  saying  that 
formerly  the  appointment  of  a  debtor  as  executor  "was  deemed  at  law  a 
release  or  extinguishment  of  the  debt" 

396.  RENTS  DUE  TO  TENANT  FOR  LIFE  TO  BE  IN- 

CLUDED IN  INVENTORY. 

(e~)  The  rents  of  any  real  estate  accruing  to  any  person  as  ten- 
ant for  life  of  such  estate,  who  had  demised  the  same,  for  a  term 
or  time  not  fully  expired  at  his  decease,  shall  go  to  and  be  vested 
in  the  executors  or  administrators  of  such  tenant,  and  the  due 
proportion  of  such  accruing  rent,  to  be  computed  according  to  the 
time  elapsed  at  the  decease  of  such  tenant,  shall  be  included  in  the 
inventory  of  personal  assets. 


FIDUCIARIES  ACT— SECTION  11  (<?),  (/),  (ff),  (M  303 

NOTE.— This  is  Section  7  of  the  Act  of  February  24,  1834,  i  Purd.  1091, 
which  corresponded  to  Section  8  of  the  Commissioners'  Draft  and  was 
derived  from  the  Statute  of  n  Geo.  II,  c.  19.  The  Commissioners  re- 
marked: "As  the  statute  is  already  deemed  a  part  of  our  law,  there  is 
nothing  in  the  section  which  requires  particular  remark." 

The  only  change  made  is  to  insert  "as  tenant,"  after  "to  any  person." 

397.  ARREARAGES  OF  RENT-CHARGE  OR  OTHER 

RENT  OR  RESERVATION,  TO  BE  INCLUDED 
IN  INVENTORY. 

(/)  The  arrearages  of  any  rent-charge,  or  other  rent  or  reser- 
vation in  nature  of  a  rent,  due  at  the  death  of  any  tenant  of  such 
rent,  in  fee-simple  or  fee-tail,  or  for  term  of  life  or  lives,  shall 
go  to  and  be  vested  in  the  executors  or  administrators  of  such 
tenant,  and  be  included  in  the  inventory,  and  appraised  as  per- 
sonal assets. 

NOTE. — This  is  Section  8  of  the  Act  of  February  24,  1834,  i  Purd.  1091, 
which  corresponded  to  Section  9  of  the  Commissioners'  Draft  and  was 
derived  from  the  Statute  of  32  Hen.  VIII,  c.  37. 

The  words  "of  such  rent"  have  been  inserted  after  "death  of  any  tenant," 
and  omitted  after  "life  or  lives." 

398.  ESTATES  IN  LAND  FOR  LIFE  OF  ANOTHER  TO 

BE  INCLUDED  IN  INVENTORY. 

(g)  All  estates  in  lands  or  tenements,  of  which  the  decedent 
was  seized  at  the  time  of  his  decease,  for  the  life  or  lives  of  an- 
other person  or  persons,  shall,  unless  such  estates  have  been  limited 
to  the  decedent  and  his  heirs,  go  to  the  executors  or  administrators 
of  such  decedent,  and  be  included  in  the  inventory,  and  be  subject 
to  distribution  in  like  manner  as  leases  for  terms  of  years. 

NOTE. — This  is  Section  9  of  the  Act  of  February  24,  1834,  i  Purd.  1091, 
which  corresponded  to  Section  10  of  the  Commissioners'  Draft  and  was  de- 
rived from  the  Statute  of  29  Car.  II,  c.  3,  Section  12. 

399.  AFTER-DISCOVERED    PROPERTY    TO    BE    IN- 

VENTORIED. 

(h)  Whenever  personal  property  or  assets  of  any  kind,  not 
contained  in  the  inventory  made  and  returned  as  aforesaid,  shall 
afterwards  come  to  the  possession  or  knowledge  of  the  executor 
or  administrator,  he  shall  make  an  inventory  thereof  and  file  the 
same  in  the  office  of  the  proper  register,  within  thirty  days  from 
the  time  of  the  discovery  thereof. 


304  FIDUCIARIES  ACT— SECTION  11  (A),   (i),  (/) 

NOTE.— This  is  Section  3  of  the  Act  of  February  24,  1834;  P.  L.  73,  I 
Purd.  1090,  except  that  the  period  fixed  by  that  section  is  four  months. 

The  provision  seems  to  have  been  new  in  the  Act  of  1834.  The  Com- 
missioners of  1830  remarked:  "This  period  (four  months)  may  seem 
long,  but  the  reason  which  prevailed  with  us  in  fixing  a  time  was  the  in- 
convenience which  might  otherwise  result  in  cases  where  property  in  small 
parcels  may  be  discovered  at  successive  intervals." 

The  Commissioners  now  recommend  shortening  the  time  to  thirty  days, 
the  period  allowed  for  filing  the  original  inventory. 

Section  u  of  the  Act  of  February  24,  1834,  i  Purd.  1091,  which  corre- 
sponded to  Section  12  of  the  Commissioners'  Draft,  provides:  "Whenever 
any  executor  or  administrator  shall  sell,  at  public  auction  or  vendue,  any 
of  the  personal  estate  of  the  decedent,  he  shall,  within  thirty  days  there- 
after, file  in  the  office  of  the  register  having  jurisdiction,  a  just  and  true 
account  of  the  articles  so  sold,  and  the  prices  and  purchasers  thereof." 
The  Commissioners  reported  that  this  practice  was  not  infrequent  in  some 
parts  of  the  state,  but  that,  as  an  express  direction,  the  provision  was  new. 

This  provision  is  understood  to  be  obsolete  and  is  therefore  recommended 
for  repeal. 

400.  APPRAISEMENT,— OATH  OF  APPRAISERS. 

(i)  Every  executor  or  administrator  shall  cause  a  just  ap- 
praisement to  be  made,  by  two  or  more  appraisers,  of  the  goods, 
chattels  and  credits  of  the  decedent,  of  which  an  inventory  is  to 
be  made,  agreeably  to  the  preceding  clauses  of  this  section ;  and 
the  said  appraisers  shall  be  sworn  or  affirmed  well  and  truly,  and 
without  prejudice  or  partiality,  to  value  and  appraise  said  goods, 
chattels  and  credits,  and  in  all  respects  to  perform  their  duty  as 
appraisers,  to  the  best  of  their  skill  and  judgment. 

NOTE.— This  is  Section  26  of  the  Act  of  March  15,  1832,  P.  L.  135,  I 
Purd.  1091,  altered  by  inserting  the  words  "or  more"  in  line  2. 

401.  NOTICE  OF  APPRAISEMENT,— RETURN. 

(/)  It  shall  be  the  duty  of  the  executors  and  administrators, 
having  given  convenient  notice  to  the  appraisers  of  the  decedent's 
estate,  of  a  time  and  place  for  making  the  inventory  and  appraise- 
ment thereof,  to  produce  or  make  known  to  them,  in  the  presence 
of  such  of  the  persons  interested  in  the  estate  as  may  attend,  the 
whole  of  the  personal  estate  of  the  decedent,  which  may  have 
come  to  their  possession  or  knowledge;  and  the  inventory  and 
appraisement  thereof  being  finished,  and  certified  by  the  apprais- 
ers, to  file  the  same  in  the  office  of  the  proper  register. 

NOTE.— This  is  Section  2  of  the  Act  of  February  24,  1834,  i  Purd.  1091. 
It  seems  to  have  been  new  in  that  act.  Some  parts  of  its  details  were  de- 


FIDUCIARIES  ACT— SECTIONS  n  (/),  (fe)-i2  (a)  305 

rived  from  the  Statute  of  32  Hen.  VIII,  c.  5.  The  language  has  been 
changed  so  as  to  provide  that  the  inventory  and  appraisement  shall  be 
filed  instead  of  returned. 

402.  COMPENSATION  OF  APPRAISERS. 

(fc)  The  appraisers  of  the  estate  of  a  decedent  shall  be  respect- 
ively entitled  to  receive  therefrom,  as  compensation  for  their 
services  in  appraising  the  estate  as  aforesaid,  such  sum  as  the 
orphans'  court  having  jurisdiction  of  the  accounts  of  the  execu- 
tors or  administrators  shall  deem  proper,  taking  into  consideration 
the  labor,  skill  and  responsibility  involved. 

NOTE. — This  is  a  new  section.  The  Commissioners'  Draft  of  the  Act  of 
1834  provided  a  compensation  of  two  dollars  a  day.  The  act  as  passed 
(Section  10,  i  Purd.  1091)  allowed  only  one  dollar.  This  was  amended 
by  the  Act  of  May  23,  1913,  P.  L,.  344,  so  as  to  provide  a  compensation  of 
two  dollars  and  fifty  cents  a  day.  The  Act  of  May  6,  1915,  P.  I/.  267,  5 
Purd.  5889,  raised  this  to  five  dollars. 

The  Commissioners  are  of  opinion  that  the  compensation  of  appraisers 
should  not  be  fixed  by  law  at  a  definite  sum  for  the  reason  that  the  labor 
and  responsibility  and  skill  required  of  the  appraisers  are  not  uniform. 
The  estate  may  consist  in  part  of  raw  materials  or  the  partly  finished  prod- 
ucts of  a  factory,  stocks  or  bonds  having  no  market  value,  stock  in  trade 
of  a  merchant,  paintings  or  articles  of  a  like  nature,  for  the  proper  ap- 
praisement of  which  the  services  of  an  expert  may  be  necessary.  A  com- 
pensation of  one  dollar  or  five  dollars  per  day  may  in  such  cases  be  absurd. 
On  the  other  hand,  there  are  many  cases  where  a  compensation  of  $2.50 
would  be  entirely  adequate,  and  $5.00  too  much.  The  Commissioners  feel 
that  the  amount  justly  earned  may  be  safely  left  to  the  court,  as  is  the 
case  with  the  commissions  of  an  accountant. 

403.  WIDOW'S    AND    CHILDREN'S    EXEMPTION,— 

CLAIM  AND  APPRAISEMENT  OR  SETTING 
APART;  APPOINTMENT  OF  APPRAISERS 
BY  COURT. 

SECTION  12.  (a)  The  widow,  if  any,  or,  if  there  be  no  widow 
or  if  she  has  forfeited  her  rights,  then  the  children  forming  part 
of  the  family  of  any  decedent  dying,  testate  or  intestate,  within 
this  commonwealth,  or  dying  outside  of  this  commonwealth,  but 
whose  estate  is  settled  in  this  commonwealth,  may  retain  or  claim 
either  real  or  personal  property,  or  the  proceeds  of  either  real  or 
personal  property,  belonging  to  said  estate,  to  the  value  of  five 
hundred  dollars,  and  the  property  so  retained  or  claimed  shall 
not  be  sold,  but  suffered  to  remain  for  the  use  of  the  widow  or 
children.  It  shall  be  the  duty  of  the  executor  or  administrator  of 
20 


3o6  FIDUCIARIES  ACT— SECTION  12  (a) 

such  decedent  to  have  the  said  property,  if  personal,  appraised 
and  set  apart  to  said  widow  or  children  by  the  appraisers  appoint- 
ed to  appraise  the  other  personal  estate  of  the  decedent,  or,  if  real, 
then  by  two  appraisers  to  be  appointed  by  the  orphans'  court,  who 
may  be  the  same  persons  appointed  to  appraise  the  personal  estate. 
If  said  five  hundred  dollars,  or  any  part  thereof,  shall  be  claimed 
out  of  money  or  the  proceeds  of  real  or  personal  property  belong- 
ing to  the  estate,  it  shall  be  the  duty  of  the  executor  or  adminis- 
trator to  set  apart  to  said  widow  or  children  the  amount  so  claimed 
out  of  said  money  or  out  of  the  proceeds  of  said  real  or  personal 
property  after  he  shall  have  sold  the  same.  Should  any  or  all 
of  the  appraisers  of  the  other  personal  estate  be  unable  to  make 
the  appraisement  of  personal  property  provided  for  by  this  sec- 
tion,, or  should  there  be  no  such  appraisers,  the  orphans'  court  of 
the  proper  county  may  appoint  a  properly  qualified  appraiser  or 
appraisers  to  act  in  the  place  of  said  appraiser  or  appraisers  of  the 
other  personal  estate  of  the  decedent. 

NOTE. — This  is  founded  on  Section  5  of  the  Act  of  April  14,  1851,  P.  L. 
612,  i  Purd.  1092,  as  amended  by  the  Act  of  July  21,  1913,  P.  L.  877,  5  Purd. 
5889.  The  provisos  of  that  section  as  to  liens  for  purchase  money  and  the 
filing  of  the  appraisement  have  been  transferred  to  subsequent  clauses. 
The  provisions  of  the  Act  of  May  6,  1909,  P.  L.  459,  5  Purd.  5889,  as  to 
decedents  dying  outside  of  the  commonwealth,  but  whose  estates  are  set- 
tled in  the  commonwealth,  have  been  incorporated  in  the  new  section.  It 
seems  unnecessary  to  incorporate  the  provision  of  Section  i  of  the  Act 
of  April  8,  1859,  P.  L.  425,  i  Purd.  1096,  that  the  widow  or  children  may 
elect  to  retain  the  exemption  or  any  part  thereof  "out  of  any  bank-notes, 
money,  stocks,  judgments  or  other  indebtedness."  The  provision  of  that 
section  that  the  appraisement  shall  be  made  by  the  appraisers  of  the  other 
personal  estate  is  covered  by  the  amendment  of  1913,  which  is  included  in 
the  new  draft.  Since  the  Act  of  1859  applies  to  the  debtor's  exemption 
under  the  Act  of  1849,  as  well  as  to  the  widow's  exemption,  that  act  should 
not  be  generally  repealed. 

The  reference  in  the  Act  of  1851  to  the  exemption  law  of  1849,  has  been 
omitted  as  unnecessary  and  confusing.  The  amount  of  the  exemption  has 
been  increased  to  five  hundred  dollars. 

The  beginning  of  the  section,  which  reads,  "The  widow  or  the  children  of 
any  decedent,"  has  been  changed.  The  words  "or  the  proceeds  of  either 
real  or  personal  property  when  sold"  have  also  been  added  to  meet  the 
decisions  that  the  exemption  cannot  be  claimed  out  of  the  proceeds  of 
property.  See  Finney's  Appeal,  113  Pa.  II ;  Snyder's  Estate,  12  D.  R.  536; 
Thoman's  Estate,  16  York  154.  A  corresponding  change  has  been  made  in 
the  third  sentence.  Provision  has  been  made  for  the  case  where  only  a 
part  of  the  $500  is  claimed  in  money  or  proceeds  of  property. 


FIDUCIARIES  ACT— SECTION  12  (a)  307 

Provisions  for  appointment  by  the  court  of  appraisers  of  real  estate  and 
in  cases  where  there  are  no  appraisers  of  the  other  personal  estate,  or 
where  they  are  unable  to  act,  have  been  inserted. 

The  Act  of  1851,  together  with  the  debtor's  exemption  Act  of  1849,  sup- 
plied Section  4  of  the  Act  of  February  24,  1834,  P.  L.  70,  which  is  recom- 
mended for  repeal. 

The  amount  of  the  exemption  was  fixed  at  $300  at  a  time  when  the  pur- 
chasing power  of  money  was  far  greater  than  it  is  at  present.  The  Com- 
missioners are  of  opinion  that  the  sum  to  be  set  apart  for  the  immediate 
necessities  of  the  widow  or  children  should  be  increased  to  $500. 

See  form  76. 

The  new  provisions  as  to  widow's  exemption  inure  to  the  benefit  of  the 
widow  of  one  dying  on  June  7,  1917. 

In  so  deciding,  the  court,  per  LAMORELLE,  P.  J.,  said: 

"Two  questions  arise :  First,  whether  the  widow  is  entitled  to  $300  under 
the  Act  of  April  14,  1851,  P.  L.  612,  and  its  supplements,  or  $500  under 
Fiduciaries  Act  of  June  7,  1917,  P.  L.  447;  and,  second,  as  to  the  real 
value  of  specific  articles  selected  by  her. 

"It  is  stated  in  Endlich  on  Statutes  (section  389)  that  the  doctrine  that 
the  law  knows  no  fraction  of  a  day  has  in  general  been  adhered  to  in  this 
country  both  as  to  contract  rights  and  statutes,  though  the  rigidity  of  the 
rule  has  been  much  relaxed  where  the  purposes  of  justice  require  the 
court  to  notice  such  fractions.  In  the  present  case  the  decedent  died  about 
five  o'clock  in  the  morning;  that  is  admitted;  but  to  attempt  to  inquire 
into  what  time  of  day  the  Governor  signed  the  act  known  as  Fiduciaries 
Act  of  1917 — and,  for  that  matter,  any  other  act — would  result  in  hopeless 
confusion  and  contention.  We  are  on  safe  ground  when  we  follow  the 
time-honored  rule  and  hold  that  the  Fiduciaries  Act  became  effective  on 
the  first  moment  of  June  7,  1917,  the  day  it  purports  to  have  been  signed." 

Huber's  Est,  27  Dist.  25. 

The  $500  exemption  allowed  a  widow  out  of  her  deceased  husband's 
estate  by  the  Act  of  June  7,  1917,  P.  L.  447  (Fiduciaries  Act)  does  not 
vest  in  her  at  the  death  of  her  husband,  but  only  when  she  elects  to 
exercise  her  right  by  making  a  claim  for  it;  and  her  personal  representa- 
tive cannot  exercise  her  right  for  her  after  her  death. 

The  right  to  this  exemption  of  $500  is  a  privilege  to  retain,  and  not  an 
absolute  transfer  of  part  of  the  husband's  estate. 

In  so  holding  the  Court,  per  MAXWELL,  P.  J.,  said : 

"It  would,  therefore,  seem  to  us  that  the  $500  exemption  allowed  to 
widows  under  the  Act  of  June  7,  1917,  P.  L.  447,  is  a  personal  privilege 
and  benefit.  Her  right  to  have  any  exempted  property  depends  entirely 
upon  her  claiming  it.  If  she  does  not  claim  it,  she  never  has  it.  If  she 
neglects  unduly  to  make  her  claim,  she  loses  her  right  to  do  so.  The  right 
under  the  statute  is  a  privilege  to  retain,  and  not  an  absolute  transfer  of 
part  of  the  estate." 

The  widow  in  this  case  did  not  make  any  claim  to  this  exemption  prior 
to  her  death.  Therefore,  it  would  appear  to  us  that  her  administrator  is 
not  entitled  to  claim  $500  exemption  from  the  estate  of  her  deceased  hus- 


308  FIDUCIARIES  ACT— SECTION  12(0) 

band,  for  the  reason  that  the  widow  made  no  claim  to  have  this  exemp- 
tion of  $500.  *  *  *  The  controlling  distinction  between  the  law  relating 
to  the  $500  exemption  and  the  $5,000  allowed  to  widows  under  the  Act 
of  1917  is  that  the  $5,000  worth  of  property,  real  or  personal,  vests  in  the 
widow  at  the  death  of  her  husband,  and  does  not  require  any  action  on  her 
part  to  secure  the  same. 

The  $500  exemption  does  not  vest  at  the  death  of  the  husband,  but  only 
when  she  has  elected  to  exercise  the  right,  and  this  her  executor  or  admin- 
istrator cannot  do  for  her  after  her  death.  Desmond's  Est.,  28  Dist.  231, 
36  Lane.  217,  8  Leh.  255. 

(Note.  It  would  seem  to  be  improper  practice  to  join  in  one  petition 
a  prayer  for  the  $500  exemption  and  a  claim  to  the  $5,000  allowance. — 
Editor.) 

Where  the  plaintiff  made  claim  to  her  widow's  exemption  of  $500.00  and 
personal  property  of  deceased  amounting  to  $499.83  was  duly  appraised 
and  set  off  to  her;  and  of  the  property  set  off  to  her,  items  amounting  to 
$394.23  were  personal  property  on  the  farm  and  in  possession  of  the  de- 
fendant who  refused  to  deliver  same  to  plaintiff,  but  retained  them  and 
had  converted  them  to  his  own  use  and  the  appraisal  of  property  set 
off  to  use  plaintiff  as  widow  of  deceased  was  confirmed  absolutely  by  the 
court  and  suit  was  therefore  brought  to  recover  the  value  of  this  personal 
property  converted  by  defendant,  to  wit:  $394.23,  the  court,  per  ROSSITER, 
P.  J.,  held:  "The  questions  are  first:  Has  the  plaintiff  the  right  to  sue 
in  this  manner  or  to  recover  the  balance  due  on  account  of  her  widow's 
exemption?  Second:  Is  her  right  to  exemption  out  of  the  personal  prop- 
erty of  her  deceased  husband  superior  to  the  rights  of  creditors?  Third: 
Was  the  confirmation  of  the  widow's  appraisement  an  adjudication  of  her 
right  to  the  property  set  aside  by  the  appraisers? 

"By  the  Fiduciaries  Act  of  1917,  P.  L.  447,  Section  12,  it  is  provided  that 
the  widow  *  *  *  *  May  retain  or  claim  either  real  or  personal  prop- 
erty or  the  proceeds  of  either  real  or  personal  property  belonging  to  the 
estate  to  the  value  of  $500.00;  that  the  property  so  retained  or  claimed 
shall  not  be  sold,  but  suffered  to  remain  for  the  use  of  the  widow  and 
children ;  that  it  shall  be  the  duty  of  the  executor  or  administrator  to 
have  said  property  appraised  and  set  aside  to  the  widow ;  that  if  the 
$500.00  or  any  part  thereof  is  claimed  out  of  money  or  proceeds  of  real  or 
personal  property  belonging  to  the  estate,  it  shall  be  the  duty  of  the  execu- 
tor or  administrator  to  set  apart  for  the  widow  or  children  the  amount  so 
claimed.  The  widow  here,  therefore,  had  a  right  to  'retain  or  claim'  the 
property  above  mentioned.  If  she  was  in  possession  of  the  property  she 
would  undoubtedly  'retain'  it,  but  being  out  of  possession  of  the  property, 
she  'claimed'  the  same  and  having  'claimed'  the  same,  it  was  her  'duty'  as 
administratrix  to  have  it  appraised  and  set  aside  and  that  appraisement 
confirmed  and  the  defendant  refusing  to  deliver  the  property,  but  convert- 
ing it  to  his  own  use,  (which  is  not  denied)  it  was  her  'duty'  as  adminis- 
tratrix to  bring  an  action  to  the  use  of  herself  personally  under  rights 
given  her  under  the  act  of  assembly,  so  as  to  distinguish  the  action  from 
one  brought  in  the  right  of  the  estate,  as  in  the  first  instance  there  can  be 
no  offset  or  counterclaim,  while  in  the  latter  there  may  be.  And  Neely  v. 


FIDUCIARIES  ACT— SECTION  12  (a)  309 

McCormick,  25  Pa.  255,  holds  that  such  action  may  be  in  assumpsit.  The 
first  question,  therefore,  must  be  answered  in  the  affirmative.  The  second 
question  must  also  be  answered  in  the  affirmative.  Hill  v.  Hill,  32  Pa.  511; 
Compher  v.  Compher,  25  Pa.  31 ;  Farrell's  Estate,  4  W.  N.  C.  383,  25  P. 
L.  J.  56;  Potter's  Estate,  6  Super.  Ct.  627  As  to  the  third  question  we  are 
inclined  to  answer  that  in  the  affirmative  also,  but  as  no  case  has  been 
called  to  our  attention  in  support  thereof  we  do  not  pass  upon  it,  but  we 
do  hold  that  the  record  showing  that  the  defendant  in  this  case,  having  been 
a  party  to  those  proceedings  and  filed  exceptions  thereto,  which  were  April 
1st,  1919,  overruled,  and  the  appraisal  confirmed  without  any  further  excep- 
tion to  the  court's  action  in  that  respect  he  is  estopped  from  denying  that 
the  property  set  aside  by  that  appraisal  was  the  property  of  the  decedent 
or  subject  to  the  widow's  exemption."  Curtis  v.  Yost,  2  Erie  6. 

This  section  of  the  Fiduciaries  Act,  which  increases  the  amount  of  the 
widow's  exemption  out  of  her  deceased  husband's  estate  from  $300  to 
$500,  makes  no  other  change  in  Section  5  of  the  Act  of  April  16,  1851, 
P.  L.  613,  except  in  matters  of  procedure.  While  there  is  a  verbal 
difference  between  the  two  acts,  it  is  not  enough  to  enlarge  her  right  at 
the  expense  of  the  family  relation.  Hence,  her  claim  is  barred  where,  at 
the  time  of  the  husband's  death,  such  relation  did  not  exist  by  reason  of 
the  fact  that  she  had  voluntarily  abandoned  it. 

Post's  Est.,  27  Dist.  748,  66  P.  L.  J.  761,  8  Leh.  115,  33  York  II,  19 
Lack.  62,  35  Lane.  226,  36  Lane.  8. 

Wilful  and  malicious  desertion  of  her  husband,  by  a  wife,  will  cause 
her  to  forfeit  her  right  to  widow's  exemption.  Wenger's  Est.,  35  Lane. 
Rev.  196,  27  Dist.  949. 

The  $500  widow's  exemption  granted  by  the  Act  of  June  7,  1917,  P.  L. 
447,  is  not  subject  to  the  direct  inheritance  tax  imposed  by  the  Act  of 
July  li,  1917,  P.  L.  832,  providing  that  "All  estates  *  *  *  passing  from 
any  person  *  *  *  either  by  will  or  under  the  intestate  laws  *  *  *  are  sub- 
ject to  the  tax  of  $2  on  every  hundred  dollars  of  the  clear  value  of  such 
estate." 

"Such  exemption  is  a  wife's  inchoate  property  right  in  a  husband's 
estate,  which  becomes  complete  when  as  his  widow  she  sustains  her  claim 
for  it.  It  is  not  subject  to  the  tax  imposed  on  the  estate  passing  from  a 
deceased  husband."  Hildebrand's  Est.,  262  Pa.  112,  104  Atl.  866  (affirming 
35  Lane.  73,  66  Pitts.  L.  J.  176,  31  York  184.  See  also  35  Lane.  Rev.  303). 

Where  the  owner  of  life  insurance  policies  on  his  life,  delivered  the 
same  to  another  without  actual  assignment,  but  with  a  clear  expression  of 
intent  to  make  a  gift  thereof,  with  the  condition  that  the  donee  shall  pay 
the  donor's  debts  and  funeral  expenses,  and  the  policies  thereafter,  until 
the  decease  of  the  donor  remained  in  the  possession  of  the  donee,  who 
meanwhile  paid  a  premium  on  each  policy,  it  was  held  The  donee  was 
entitled  to  the  proceeds  of  the  policies  and,  there  being  no  other  assets  of 
the  decedent,  the  court  refused  to  appoint  appraisers  to  set  aside  the 
widow's  exemption  out  of  the  donor's  estate.  Becker's  Est.,  33  York  139. 

Under  Section  12  of  the  Fiduciaries  Act  of  1917,  P.  L.  471,  providing 
that  "children  (where  there  is  no  widow)  forming  part  of  the  family  of  any 
decedent  *  *  *  may  retain  either  real  or  personal  property  *  *  * 


3io  FIDUCIARIES  ACT— SECTION  12  (a) 

belonging  to  said  estate  to  the  value  of  five  hundred  dollars,"  a  daughter 
who  lived  with  her  father  prior  to  and  at  the  time  of  his  death  is  entitled 
to  the  exemption  regardless  of  her  age  or  condition  of  dependence  on  the 
parent. 

"This  part  of  the  section  is  founded  on  Section  5  of  the  Act  of  April  14, 
1851,  P.  L.  612,  which  provides  that  'the  widow  or  the  children  of  any 
decedent  dying  within  this  Commonwealth,  testate  or  intestate,  may 
retain  either  real  or  personal  property  belonging  to  said  estate  to  the 
value  of  $300  and  the  same  shall  not  be  sold,  but  suffered  to  remain  for 
the  use  of  the  widow  and  family  *  *  *.'  It  will  be  observed  that  the 
beginning  of  the  new  section  has  been  changed  and  that  the  words  'then 
the  children  forming  part  of  the  family  of  any  decedent  dying'  are  new 
and  were  not  in  the  former  act.  The  reason  for  the  change  is  very 
apparent,  when  it  is  remembered  that  under  the  former  act  there  was 
room  for  judicial  construction  with  respect  to  the  persons  entitled  to 
the  benefits  allowed  by  the  act.  The  courts,  however,  in  construing  the 
Act  of  1851,  invariably  held  that  its  purpose  was  the  protection  of  the 
family,  and  that,  therefore,  if  the  widow  and  children  were  members  of 
the  family  at  the  date  of  death,  no  other  circumstance  or  condition  could 
deprive  them  of  the  exemption. 

"To  harmonize  the  law  and  the  views  of  the  courts  on  the  subject,  the 
Legislature,  upon  the  recommendation  of  the  commission  to  codify  and 
revise  the  law  of  decedents'  estates,  incorporated  in  Section  12  of  the 
Act  of  1917  the  language  describing  'children  as  forming  part  of  the 
family  of  any  decedent  dying'  and  thus  settled  the  question  as  to  which 
children  are  entitled  to  the  exemption. 

"Under  the  Act  of  1851,  where  the  language  was  not  so  explicit  and  clear 
as  it  is  in  the  Act  of  1917,  it  was  repeatedly  held,  that  when  the  family 
relation  was  maintained  by  either  the  widow  or  children,  the  exemption 
was  properly  allowed.  The  age  of  the  claimant  was  without  significance, 
and  the  question  of  dependence  had  nothing  to  do  with  the  operation  of  the 
Act  In  Lane's  Est,  6  Dist.  R.  618,  decided  by  Judge  STEWART,  it  was  held 
that  the  criterion  for  recovery  by  an  adult  is  not  dependence,  but  the  main- 
tenance of  family  and  residence  with  the  testator.  To  the  same  effect  is 
Stevenson's  Est.,  23  Dist.  R.,  747,  where  it  was  decided  that  a  married 
daughter  is  entitled  to  the  exemption,  even  though  she  is  independent  of 
her  father,  if  she  maintains  the  family  residence  and  relation  with  him. 
In  the  light  of  this  construction  of  the  Act  of  1851,  which  appeared  to  be 
narrower  in  its  scope  than  the  present  one,  it  can  hardly  be  said  that  when 
the  present  act  reads  'then  the  children  forming  part  of  the  family  of  any 
decedent  dying  *  *  *  ,'  it  does  not  include  all  the  children  who  con- 
on  the  parent."  SCHAEFFER,  P.  J.,  in  Hornberger's  Est.,  13  Berks  183,  30 
Dist.  907. 

An  appraisement  made  in  accordance  with  the  provisions  of  Section  12 
of  the  Fiduciaries  Act  of  1917  will  not  be  set  aside  on  exceptions  unless 
it  be  shown  that  the  appraisers  lacked  appreciation  of  their  responsibility, 
that  their  labors  are  unworthy  of  consideration  or  that  their  findings  are 
clearly  erroneous.  Zerbe's  Est.  13  Berks  277. 


FIDUCIARIES  ACT— SECTION  12  (&),  (c),  (<*)  311 

404.     LIENS  FOR  PURCHASE  MONEY  OF  REAL  ES- 
TATE NOT  TO  BE  AFFECTED. 

(&)  The  provisions  of  this  section  allowing  the  widow  or  chil- 
dren of  a  decedent  to  retain  real  property,  or  the  proceeds  thereof, 
to  the  value  of  five  hundred  dollars  shall  not  affect  or  impair  any 
liens  for  the  purchase  money  of  such  real  property. 

NOTE. — This  is  founded  on  the  first  proviso  to  Section  5  of  the  Act  of 
1851,  as  amended  by  the  Act  of  July  21,  1913,  P.  L.  877,  5  Purd.  5889. 

The  words  "or  the  proceeds  thereof"  have  been  inserted. 

See  Becker's  Est.,  33  York  139. 

405    OATHS  AND  COMPENSATION  OF  APPRAISERS. 

(c)  Such  appraisers  shall  be  sworn  or  affirmed  to  appraise  the 
property  claimed  by  the  widow  or  children  of  the  decedent  under 
the  provisions  of  this  act.  The  compensation  of  such  appraisers 
for  making  an  appraisement  of  personal  property  shall  be  included 
in  the  compensation  allowed  by  the  orphans'  court  for  the  perform- 
ance of  their  duties  as  appraisers  of  the  other  personal  estate  of 
the  decedent,  and  shall  be  paid  out  of  the  decedent's  estate;  and 
the  compensation  of  appraisers  appointed  by  the  orphans'  court 
as  aforesaid  shall  be  fixed  by  said  court  and  shall  also  be  paid  out 
of  the  decedent's  estate. 

NOTE. — This  is  a  new  section,  founded  on  Section  2  (fc)  of  the  new 
Intestate  Act.  (See  297  supra.) 

The  Commissioners  are  of  opinion  that  the  appraisement  of  real  estate 
should  be  made  by  persons  specially  appointed  rather  than  by  the  appraisers 
of  the  personal  estate,  who  as  a  general  rule  are  not  familiar  with  real 
estate  valuations ;  and  that  their  compensation  should  properly  be  con- 
sidered as  an  administration  expense.  The  widow  should  receive  her  ex- 
emption without  the  deduction  of  such  expenses  or  those  of  any  necessary 
advertisements  as  provided  in  the  next  section. 

See  Becker's  Est.,  33  York  139. 

406.  ADVERTISEMENT  OF  NOTICE;  CONFIRMA- 
TION AND  FILING  OF  APPRAISEMENT;  PAY- 
MENT OF  EXPENSES  OF  ADVERTISEMENT 
OR  NOTICE. 

(rf)  Upon  due  proof  of  compliance  with  such  requirements  as 
to  notice,  by  advertisement  or  otherwise,  as  may  be  prescribed  by 
the  orphans'  court  of  the  proper  county  by  general  rule  or  other- 
wise, such  court  may  enter  a  decree  directing  the  payment  of  the 


312  FIDUCIARIES  ACT— SECTION  12  (rf),  (*)  i,  2,  (/) 

money,  or  confirming  the  appraisement  of  the  personal  or  real 
estate  chosen  by  said  widow  or  children,  and  said  appraisement, 
signed  and  certified  by  the  appraisers  and  approved  by  the  court, 
shall  be  filed  among  the  records  thereof :  Provided,  That  all  ex- 
penses of  such  advertisement  or  notice  shall  be  paid  out  of  the 
decedent's  estate. 

NOTE. — This  is  a  new  section,  founded  in  part  on  the  first  proviso  of 
Section  5  of  the  Act  of  1851  as  amended  by  the  Act  of  July  21,  1913,  P.  L. 
877,  5  Purd.  5889,  and  in  part  upon  Section  2  (c)  of  the  new  Intestate 
Act  (See  298  supra).  The  provision  as  to  payment  of  expenses  out  of 
the  estate  is  new. 

407.  EXEMPTION  TO  MINOR  CHILDREN,— DUTY  OF 

EXECUTOR  OR  ADMINISTRATOR  TO  ACT. 

(0)  i.  In  the  case  of  any  decedent  leaving  to  survive  him  any 
minor  child  or  children  forming  part  of  his  family,  and  no  widow, 
his  administrator  or  executor,  without  request  made  to  him  by  any 
one,  shall  have  appraised  and  set  aside,  for  the  use  and  benefit  of 
all  such  minor  children  of  said  decedent,  property  to  the  full  value 
of  five  hundred  dollars. 

NOTE.— This  is  Section  i  of  the  Act  of  June  4,  1883,  P.  L.  74,  i  Purd. 
1096,  substituting  "five  hundred  dollars"  for  "now  allowed  by  law,"  etc., 
and  "minor  child  or  children  forming  part  of  his  family"  for  ''child  or 
children  under  the  age  of  fourteen  years." 

408.  GUARDIAN  OR  EXECUTOR  OR  ADMINISTRA- 

TOR TO  SELECT  PROPERTY  TO  BE  SET 
ASIDE. 

2.  The  guardian  of  said  child  or  children,  and  if  there  be  none, 
the  administrator  or  executor,  with  the  appraisers,  shall  make 
selection  of  the  property  to  be  set  aside,  and  in  so  doing,  the  said 
guardian,  or  the  said  administrator  or  executor,  with  the  apprais- 
ers, shall  be  governed  by  the  necessities  of  such  child  or  children, 
under  the  circumstances  of  each  case. 

NOTE. — This  is  Section  2  of  the  Act  of  June  4,  1883,  P.  L.  74,  i  Purd. 
1096,  changing  "appraiser"  to  "appraisers"  and  substituting  "in  so  doing" 
for  "in  the  same." 

409.  WHERE   ESTATE    DOES    NOT    EXCEED    FIVE 

HUNDRED  DOLLARS. 

(/)  When  any  decedent  shall  leave  to  survive  him  a  widow  or 
children  and  an  estate  not  exceeding  in  value  five  hundred  dollars 
it  shall  be  lawful  for  such  widow,  or  for  such  children  by  any  next 


FIDUCIARIES  ACT— SECTION  12  (/),  (g)  313 

friend  or  guardian,  if  to  said  children  the  right  belongs,  to  petition 
the  orphans'  court  of  the  proper  county  for  the  appointment  of 
two  appraisers,  who  shall  appraise  and  set  aside  any  property  of 
said  decedent,  selected  by  such  widow  or  by  such  next  friend  or 
guardian,  in  the  same  manner  and  with  the  same  effect  as  if  letters 
testamentary  or  of  administration  had  issued  and  the  appraisers 
been  selected  in  the  usual  way.  Such  appraisers  shall  be  sworn  or 
affirmed,  and  shall  receive  for  their  services  such  compensation  as 
shall  be  allowed  by  said  court. 

NOTE. — This  is  Section  3  of  the  Act  of  June  4,  1883,  P.  L,.  74,  i  Purd. 
1096,  the  language  being  slightly  changed  for  the  sake  of  clearness,  espe- 
cially so  as  to  show  that  the  widow  need  not  file  her  petition  by  a  next 
friend.  The  last  sentence  is  new,  and  the  amount  is  changed  from  three 
hundred  to  five  hundred  dollars. 

410.  CLAIM  OF  EXEMPTION  OUT  OF  REAL  ESTATE 
APPRAISED  AT  MORE  THAN  AMOUNT  OF 
CLAIM;  APPRAISEMENT  AND  CONFIRMA- 
TION; PAYMENT  OF  EXCESS;  SALE  ON 
FAILURE  TO  PAY. 

(g)  Whenever  the  widow  or  children  of  any  decedent  shall 
claim  the  sum  of  five  hundred  dollars  in  value,  or  any  part  thereof, 
under  the  provisions  of  this  act,  out  of  real  estate  left  by  said 
decedent,  and  the  real  estate  appraised  cannot  be  divided  so  as  to 
set  apart  the  amount  so  claimed  in  value  without  prejudice  to  or 
spoiling  the  whole  or  any  parcel  of  said  real  estate,  and  the  ap- 
praisers may  have  appraised  or  shall  appraise  and  value  the  same 
at  an  amount  equal  to  or  exceeding  the  amount  claimed  by  said 
widow  or  children  out  of  said  real  estate,  over  and  above  the 
liens  that  are  upon  it,  the  orphans'  court  to  which  such  appli- 
cation shall  be  made  may  confirm  such  appraisement  and  set 
apart,  for  the  use  of  the  widow  or  children,  such  real  estate,  sub- 
ject to  whatever  liens  may  be  against  the  same ;  conditioned,  how- 
ever, that  the  widow  or  children  shall  pay  the  amount  of  the  val- 
uation or  appraisement,  over  and  above  the  liens  that  may  be 
against  the  said  real  estate,  in  excess  of  the  amount  claimed  by 
said  widow  or  children  out  of  said  real  estate,  within  one  year 
from  the  date  of  confirmation  of  such  valuation.  If  the  widow  or 
children  making  such  claim  shall  fail  to  make  payment  as  above 
provided,  the  court,  on  application  of  any  person  interested,  shall 
direct  the  executor  or  administrator  to  sell  the  said  real  estate, 
and  the  procedure  in  such  case  shall  be  the  same  as  is  provided 


314  FIDUCIARIES  ACT— SECTION  12  (<?),  (A),  (i) 

by  law  in  cases  of  sales  of  real  estate  for  the  payment  of  debts  of 
a  decedent. 

NOTE. — This  is  founded  on  Sections  i  and  2  of  the  Act  of  June  i,  1915, 
P.  L,  682,  5  Purd.  5889,  which  repealed  the  Act  of  November  27,  1865,  P.  L. 
(1866)  1227,  i  Purd.  1096.  The  Act  of  1915  has  been  modified  so  as  to 
make  the  procedure  uniform  with  that  prescribed  by  Section  2  (d)  of  the 
new  Intestate  Act,  (See  299  supra.) 

411.  TITLE  TO  VEST  ON   PAYMENT   OF  EXCESS; 

DISTRIBUTION  OF  PROCEEDS  OF  SALE. 

(A)  The  real  estate,  if  taken  by  the  widow  or  children  as  afore- 
said, shall  vest  in  her  or  them  and  her  or  their  heirs  or  assigns, 
subject  to  any  liens  upon  it,  on  her  or  their  paying  the  surplus 
over  and  above  the  amount  claimed  by  her  or  them  out  of  said 
real  estate  to  the  parties  entitled  thereto.  Should  the  real  estate 
be  sold  as  provided  in  clause  (<?)  of  this  section,  then  the  sum  of 
five  hundred  dollars  or  such  part  thereof  as  may  be  claimed  out 
of  the  real  estate  shall  be  paid  out  of  the  purchase  money  to  the 
widow  or  children,  and  the  balance,  after  payment  of  costs  and 
expenses,  distributed  to  the  heirs  or  other  persons  legally  en- 
titled thereto. 

NOTE. — This  is  founded  on  Sections  3  and  4  of  the  Act  of  June  i,  1915, 
P.  L.  682,  5  Purd.  5889,  which  repealed  the  Act  of  November  27,  1865,  as 
above  noted.  The  Act  of  1915  has  been  modified  so  as  to  make  the  pro- 
cedure uniform  with  that  prescribed  by  Section  2  (e)  of  the  new  Intestate 
Act  (See  300  supra.) 

Section  5  of  the  Act  of  1915  provides :  "All  former  appraisements,  here- 
tofore made  as  authorized  hereby,  are  validated  and  made  good  and  effec- 
tual." Section  6  of  the  Act  of  1915  is  merely  a  repealer. 

412.  WIDOW  OR  CHILDREN  ENTITLED  TO  RENTS, 

INCOME,  INTEREST  AND  DIVIDENDS  FROM 
DEATH  OF  DECEDENT;  DEDUCTION  OF 
PROPORTIONATE  PART  UPON  FAILURE  TO 
PAY  EXCESS  VALUE  OF  REAL  PROPERTY. 

(»)  In  all  cases  where  the  appraisement  of  property,  real  or 
personal  or  both,  is  confirmed  and  the  property  set  apart  to  the 
widow  or  children  under  the  provisions  of  this  section,  said  widow 
or  children  shall  be  entitled  to  receive  for  her  or  their  own  use 
the  net  rents,  income,  interest  and  dividends  thereof  from  the  date 
of  the  death  of  such  decedent :  Provided,  That  where  the  property 
so  set  apart  shall  consist  of  real  estate  appraised  at  an  amount  ex- 
ceeding the  amount  claimed  by  said  widow  or  children  out  of  said 


FIDUCIARIES  ACT— SECTION  12  (»),  (;)  315 

real  estate,  over  and  above  the  liens  that  are  upon  it,  and  the 
widow  or  children  shall  fail  to  pay  the  excess  over  the  amount  so 
claimed  as  provided  in  clause  (g)  of  this  section,  and  the  property 
shall  thereupon  be  sold,  there  shall  be  deducted  from  the  sum  to  be 
paid  to  said  widow  or  children  out  of  the  proceeds  of  such  sale  a 
proportionate  part  of  the  rents  and  income  of  such  real  estate 
received  by  such  widow  or  children. 

NOTE. — This  is  a  new  clause,  modeled  upon  Section  2  (/)  of  the  new 
Intestate  Act.  (See  301  supra.)  It  will  be  of  less  frequent  application 
under  the  present  act,  but  seems  to  be  proper. 

413.  PROCEDURE  WHERE  REAL  ESTATE  LIES  IN 
ANOTHER  COUNTY  OR  IS  DIVIDED  BY  A 
COUNTY  LINE. 

(/)  Whenever  the  widow  or  children  of  any  decedent  shall 
claim  the  said  five  hundred  dollars  in  value,  or  any  part  thereof, 
under  the  provisions  of  this  section,  out  of  the  real  estate  left  by 
the  said  decedent  and  lying  in  any  county  of  this  state  other  than 
the  county  wherein  said  decedent  shall  be  domiciled  at  the  time  of 
his  death,  and  the  orphans'  court  having  jurisdiction  of  the 
accounts  of  the  personal  representatives  of  said  decedent  shall  be 
satisfied,  upon  petition  filed,  of  the  propriety  of  allowing  such 
claim,  it  shall  be  lawful  for  such  court  to  make  a  decree  authoriz- 
ing such  widow  or  children  to  file  her  or  their  petition  in  the 
orphans'  court  of  the  county  wherein  such  real  estate  may  lie,  or, 
in  a  case  where  the  real  estate  is  divided  by  a  county  line,  in  the 
county  where  the  mansion  house  may  be  situated,  or,  if  there  be 
no  mansion  house,  in  the  county  where  the  principal  improvements 
may  be,  or,  if  there  be  no  improvements,  in  either  county,  praying 
for  the  appointment  of  two  appraisers.  Upon  the  filing  of  such 
petition  duly  verified,  it  shall  be  the  duty  of  the  latter  court  to 
appoint  such  appraisers,  who  shall  be  duly  sworn  or  affirmed,  and 
shall  appraise  said  real  estate,  and  shall  be  compensated  as  di- 
rected by  said  court ;  and  proceedings  shall  thereupon  be  had  in 
said  court  and  subject  to  its  supervision  and  control,  in  the  same 
manner  and  with  the  same  effect  as  is  provided  in  clauses  (g),  (/i) 
and  (i)  of  this  section.  In  every  such  case  a  certified  copy  of  the 
decree  confirming  such  appraisement,  or  of  such  decree  of  sale 
and  the  confirmation  thereof,  as  the  case  may  be,  shall  forthwith 
be  filed  with  the  clerk  of  the  orphans'  court  having  jurisdiction 
of  the  accounts  of  the  personal  representatives  of  the  said  dece- 


316  FIDUCIARIES  ACT— SECTIONS  12  (/),  (*)-i3  (a) 

dent.  The  latter  court  shall  in  all  cases  have  exclusive  jurisdic- 
tion of  the  distribution  of  the  surplus  paid  by  such  widow  or 
children,  or  of  the  proceeds  of  such  sale,  after  the  payment  of 
costs  and  expenses,  as  the  case  may  be, 

NOTE. — This  is  a  new  clause,  modeled  on  Section  2  (g)  of  the  new 
Intestate  Act  (See  302  supra.)  The  clause  seems  necessary,  although  the 
case  may  not  arise  frequently. 

414.  RECORDING  AND  REGISTRY  OF  DECREE  CON- 

FIRMING APPRAISEMENT  OF  REAL  ESTATE. 

(&)  In  all  cases  where  a  decree  shall  be  entered  by  any  orphans' 
court  confirming  an  appraisement  of  real  estate  and  setting  apart 
the  same  for  the  use  of  the  widow  or  children,  a  certified  copy  of 
such  decree  shall  be  recorded  in  the  office  of  the  recorder  of  deeds 
of  each  county  where  such  real  estate  shall  lie,  in  the  deed  book, 
and  shall  be  indexed  by  the  recorder  in  the  grantors'  index  under 
the  name  of  the  decedent,  and  in  the  grantees'  index  under  the 
name  or  names  of  the  widow  or  children,  and  shall  be  registered 
in  the  survey  bureau,  or  with  the  proper  authorities  empowered 
by  law  to  keep  a  register  of  real  estate,  if  any  there  be,  in  each  of 
said  counties.  The  charges  for  recording  and  registering  shall  be 
the  same  as  are  provided  by  law  for  similar  services,  and  shall  be 
paid  out  of  the  estate  of  the  decedent. 

NOTE. — This  is  a  new  clause,  modeled  on  Section  2  (h)  of  the  new 
Intestate  Act  (See  303  supra.) 

415.  PAYMENT  OF  DEBT  OF  DECEDENT,— ORDER 

OF  PAYMENT. 

SECTION  13.  (a)  All  debts  owing  by  any  person  within  this  state, 
at  the  time  of  his  decease,  shall  be  paid  by  his  executors  or  admin- 
istrators, so  far  as  they  have  assets,  in  the  manner  and  order  fol- 
lowing, viz. :  i.  Funeral  expenses,  medicine  furnished  and  medical 
attendance  given  during  the  last  illness  of  the  decedent,  and  serv- 
ants' wages,  not  exceeding  one  year;  2.  Rents,  not  exceeding 
one  year ;  3.  All  other  debts,  without  regard  to  the  quality  of  the 
same,  except  debts  due  to  the  commonwealth,  which  shall  be  last 
paid. 

NOTE.— This  is  Sec.  21  of  the  Act  of  Feb.  24,  1834, (P.  L.  76)  i  Purd.  1103 
(Section  22  of  the  Commissioners'  Draft),  which  was  founded  on  Section 
14  of  the  Act  of  April  19,  1704,  3  Sm.  L.  143. 

See  Miller's  Est,  264  Pa.  310,  107  Atl.  614. 


FIDUCIARIES  ACT— SECTION  13  (a),  (&)  317 

"The  history  of  this  legislation,  as  shown  in  the  Act  of  April  19,  1794, 
3  Sm.  L,.  143,  the  second  report  of  the  Commission  of  1830  to  revise  the 
Civil  Code,  pages  39  and  52,  and  the  Act  of  1834,  above  referred  to,  shows 
that  the  words  'without  regard  to  the  quality  of  the  same'  were  intended  to 
obliterate  the  old  distinctions  which  gave  priority  to  judgments,  recogni- 
zances, bonds  and  specialties,  and  do  not  apply  to  cases  where  the  order  of 
preference  may  depend  upon  the  special  incidents  of  the  contract  between 
the  parties."  GEST,  J.,  in  Cockran's  Est,  28  Dist.  654. 

A  liquor  license  is  not  in  the  usual  sense  an  asset  for  the  payment  of 
debt  of  the  deceased  licensee. 

Where  the  widow  of  a  deseased  owner  of  a  liquor  license  contracted 
with  one  of  the  creditors  to  sell  the  license,  good  will  and  unexpired  lease- 
hold, with  the  personal  property  on  the  premises,  at  public  sale,  and  gave 
the  creditor  forty  per  cent,  of  the  net  proceeds,  in  consideration  of  that 
creditor's  staying  its  execution,  which  it  had  levied  on  the  property  in  the 
decedent's  lifetime,  the  contract  is  binding  on  the  creditors,  even  if  the 
estate  is  insolvent.  The  landlord,  in  such  a  case,  is  not  entitled  to  a  pref- 
erence as  to  his  claim  for  rent  due  at  the  decedent's  death  out  of  the  pro- 
ceeds of  sale  of  the  good  will,  license  and  leasehold  under  the  Acts  of 
February  24,  1834,  Section  21,  P.  L.  70,  and  the  Fiduciaries  Act  of  June  7, 
1917,  P.  L.  447.  Tschopp's  Est.,  27  Dist.  103,  aff'd  in  71  Super.  434. 

Funeral  expenses,  being  regarded  as  equivalent  to  a  debt  of  the  decedent 
should  be  deducted  in  computing  inheritance  tax.  Smith's  (Jennie)  Est., 
49  Pa.,  C.  C.  453,  29  Dist.  917. 

416.     PAYMENT  NOT  TO  BE  COMPELLED  WITHIN 
SIX  MONTHS. 

(&)  No  executor  or  administrator  shall  be  compelled  to  pay  any 
debts  of  the  decedent,  except  such  as  are  by  law  preferred  in  the 
order  of  payments  to  rents,  until  six  months  be  fully  elapsed 
from  the  granting  of  the  administration  of  the  estate. 

NOTE. — This  is  Section  22  of  the  Act  of  1834,  i  Purd.  1105,  which  was 
new  in  that  act.  The  only  change  now  made  is  to  reduce  the  period  from 
one  year  to  six  months. 

Section  23  of  the  Act  of  1834,  i  Purd.  1106,  which  was  new  in  that  act, 
reads :  "Whenever  the  laws  of  the  place  in  which  was  the  decedent's 
domicile  at  the  time  of  his  death,  contain  any  provisions  whereby  a 
preference  may  be  given  in  the  payment  of  debts,  due  to  the  citizens  or 
residents  thereof,  as  such,  over  the  citizens  or  residents  of  this  state,  the 
executor  or  administrator  shall,  in  the  disposition  of  such  of  the  assets 
as  may  come  into  his  hands,  observe  the  like  rules  of  preference  in  favor 
of  the  citizens  or  residents  of  this  Commonwealth  over  the  citizens  or 
residents  of  such  place,  in  the  same  manner  as  if  such  rules  were  hereby 
expressly  enacted." 

It  is  recommended  that  this  reciprocity  provision  be  repealed. 


3i8  FIDUCIARIES  ACT— SECTION  14 

417.  RENTS  OF  REAL  ESTATE  TO  BE  ASSETS  FOR 
PAYMENT  OF  DEBTS  WHEN  PERSONAL  ES- 
TATE INSUFFICIENT;  COLLECTION  BY  EX- 
ECUTOR OR  ADMINISTRATOR. 

SECTION  14.  Rents  of  real  estate  accruing  after  the  death  of  the 
owner  of  such  real  estate,  who  shall  die  on  or  after  the  day  on 
which  this  act  shall  go  into  effect,  shall  be  assets  for  the  payment 
of  debts  of  such  decedent  whenever  the  personal  estate  shall  be 
insufficient  therefor.  Whenever  the  personal  estate  of  such  de- 
cedent shall  appear  to  be  probably  insufficient  for  the  payment 
of  debts,  the  orphans'  court  having  jurisdiction  of  the  accounts  of 
the  executor  or  administrator  shall,  upon  application  of  any  cred- 
itor of  the  decedent,  or  upon  application  of  the  executor  or  ad- 
ministrator, or  of  any  other  person  interested,  authorize  and  direct 
the  executor  or  administrator  to  collect  such  rents  for  such  period 
as  the  court  shall  fix.  In  such  case,  the  executor  or  administrator 
shall  have  power  to  collect  such  rents  by  action  at  law,  distress,  or 
otherwise,  as  the  decedent,  in  his  lifetime,  might  have  done  as  to 
rents  of  such  real  estate ;  and  rents  so  collected  shall  be  accounted 
for  by  the  executor  or  administrator  in  his  account  of  the  personal 
estate  of  the  decedent. 

NOTE. — This  is  a  new  section.  Land  in  Pennsylvania  has  been  an  asset 
for  the  payment  of  debts,  at  least  since  1693;  Laws  made  at  Philadelphia, 
c.  14;  but  until  the  land  has  been  brought  into  administration  either  by  the 
provisions  of  the  will  or  by  process  of  law,  it  belongs  to  the  heir  or  devisee, 
who  is  consequently  entitled  to  the  rents ;  and  even  where  the  estate  is  in- 
solvent an  executor  or  administrator,  and  consequently  the  creditors,  have 
no  right  to  the  interim  rents :  Fross's  Appeal,  105  Pa.  258.  This  does  not 
appear  to  be  just,  for  the  devisee  or  heir  should  have  no  right  to  anything 
until  the  debts  are  paid ;  and  the  Commissioners  recommend  this  change 
in  the  law  in  order  that  this  inequality  may  be  corrected. 

Furthermore  the  application  of  the  rents  during  the  period  of  admin- 
istration to  the  payment  of  debts  may  in  some  cases  obviate  the  necessity 
for  a  sale  and  perhaps  a  sacrifice  of  the  real  estate. 

See,  generally,  Miller's  Est.,  264  Pa.  310;  107  Atl.  614  Cullen's  Est.,  16 
Sch.  278. 

Under  this  section  of  the  Fiduciaries  Act  executors  are  entitled  to  collect 
rents  and  to  possession  of  decedent's  real  estate  as  against  the  residu- 
ary devisee,  it  appearing  that  the  personal  estate  of  the  decedent  was  not 
sufficient  to  pay  decedent's  debts,  and  a  petition  on  behalf  of  the  devisee 
to  vacate  an  order  made  without  notice  authorizing  the  executors  to  collect 
the  rents  of  the  real  estate  was  dismissed. 

While  the  Fiduciaries  Act  of  June  /,  1917,  declares  that  the  rents  of  a 
decedent's  real  estate  shall  be  assets  for  the  payment  of  debts  and  that  the 


FIDUCIARIES  ACT— SECTION  14  319 

court  shall  authorize  the  executor  to  collect  them,  it  seems  clear  that  this 
power  should  be  granted  when  prima  facie  facts  appear  in  a  petition  cover- 
ing the  provisions  of  the  Act.  But  the  proper  practice  is  that  notice  should 
first  be  given  to  all  parties  interested. 

The  power  "to  collect  by  action  at  law,  distress  or  otherwise,"  as  pro- 
vided by  the  Fiduciaries  Act  of  June  7,  1917,  is  not  limited  to  rents  on 
outstanding  leases.  The  act  does  not  make  mention  of  outstanding  leases ; 
it  concerns  itself  with  all  rents,  meaning  those  that  are  based  on  leases,  etc., 
and  those  that  should  be  obtained  out  of  the  profits  which  the  lands  can 
produce,  so  that  executors  under  this  statute  have  the  power  to  make  and 
renew  leases.  Reel's  Est.,  65  P.  L.  J.  689  affirmed  in  263  Pa.  248,  106 
Atl.  227. 

"This  is  new  and  very  wise  legislation,  for  before  its  passage  the  rents 
accruing  from  the  real  estate  of  a  decedent  owner  went  to  his  heirs  and 
devisees  from  the  time  of  his  death :  Haslage  v.  Krugh,  25  Pa.  97 ;  Fross's 
Appeal,  105  Pa.  258;  and  the  heir  or  devisee  of  an  insolvent  decedent 
took  such  rents  at  the  expense  of  the  creditors  of  the  estate.  To  remedy 
this  long  existing  injustice  by  making  rents,  as  well  as  the  land  out  of  which 
they  issue,  assets  for  the  payment  of  the  debts  of  a  decedent,  the  fourteenth 
Section  of  the  Act  of  1917  was  passed."  *  *  * 

"Rents  which  accrued  after  the  death  of  Almatia  L.  Reel  on  leases  ex- 
ecuted by  her  undoubtedly  became  assets  for  the  payment  of  her  debts 
under  the  Act  of  1917,  and  as  this  is  conceded,  the  real  and  only  question 
for  determination  is  as  to  the  authority  of  the  executors  to  collect  rents, 
as  assets  for  the  payment  of  her  debts,  from  real  estate  which  was  not 
under  lease  at  the  time  of  her  death.  As  has  been  observed,  the  manifest 
purpose  of  the  Act  of  1917  is  the  correction  of  a  long  standing  wrong  to 
creditors  of  deceased  owners  of  real  estate,  and  to  give  effect  to  that 
purpose,  the  act  is  to  be  given  a  liberal  construction :  Quinn  v.  Fidelity 
Beneficial  Association,  100  Pa.  382;  Poor  District  of  Huntingdon  Twp.  v. 
Poor  District  of  New  Columbus  Boro.,  109  Pa.  579;  Commonwealth  v. 
Shaken,  215  Pa.  595;  Jones  v.  Beale,  217  Pa.  182.  The  cardinal  rule  in 
construing  any  statute  is  to  ascertain  the  legislative  intent,  that  effect  may 
be  given  to  it.  No  strained  construction  need  be  put  upon  the  fourteenth 
Section  of  the  Act  of  1917  to  discover  the  legislative  intent  in  passing  it. 
A  reasonable  reading  of  its  words  makes  that  intent  most  clear.  It  is  that 
rents  of  real  estate  accruing  after  the  death  of  the  owner  shall  be  assets 
for  the  payment  of  the  debts  of  the  decedent  when  the  personal  estate  shall 
be  insufficient  therefor.  Rents  generally — not  merely  rents  which  may 
accrue  after  the  death  of  decedent  on  leases  executed  by  him  or  her — are 
made  assets  for  the  payment  of  debts.  And  what  are  rents?  They  are 
certain  profits — not  necessarily  money — issuing  yearly  out  of  land  and 
tenements  corporeal:  2  Blackstone  41.  Applying  this  to  the  Fourteenth 
Section  of  the  Act  of  1917,  in  which  nothing  is  said  about  leases,  what  is 
an  executor  or  administrator  authorized  to  collect  as  assets  for  the  payment 
of  debts  of  his  decedent  under  the  direction  of  the  Court?  Clearly  what- 
ever yearly  profits  can  be  realized  from  the  real  estate  of  his  decedent,  if 
the  personal  estate  is  insufficient  for  the  payment  of  debts,  whether  such 
profits  are  from  a  lease  made  by  the  decedent  or  by  his  personal  repre- 


320  FIDUCIARIES  ACT— SECTIONS   14-15  (a) 

sentative  under  the  authority  of  the  Court.  In  other  words,  the  legislative 
intent,  as  clear  by  implication  as  if  expressed  in  words,  is  that  neither  heir 
nor  devisee  shall  profit  from  the  real  estate  of  a  decedent  when  it  or  the 
rents  issuing  from  it  are  needed  for  the  payment  of  debts." 

"Under  the  strained  construction  we  are  asked  to  place  upon  the  act  its 
purpose  would  be  defeated  whenever  there  would  be  no  existing  Iea«e  of 
a  decedent  leaving  personal  property  insufficient  for  the  payment  of  debts. 
In  refusing  to  so  construe  the  act,  the  learned  judge  below,  speaking  for 
the  court,  aptly  and  properly  said  of  its  I4th  section:  'If  its  language 
means  only  rents  on  leases  made  by  a  decedent  in  his  lifetime,  then  an 
insolvent  decedent  could  limit  all  leases  made  by  him  to  his  lifetime, 
permit  his  heir  or  devisee  to  take  a  large  asset  of  his  estate,  to  the  com- 
plete detriment  of  his  creditors,  pending  a  sale  of  his  land.  If  it  was 
not  intended  to  make  rents  proper  assets  for  payment  of  debts,  in  absence 
of  leases,  then  productive  real  estate  can  lie  idle  without  benefit  to 
creditors.  If  it  was  not  intended  that  executors  should  take  possession 
and  secure  rents  pending  sale,  then  the  provision  is  a  futile  one.'  Nothing 
more  need  be  added  in  disposing  of  this  appeal." 

Per  BROWN,  C.  J.,  in  Reel's  Est,  263  Pa.  248,  106  Alt.  227,  affirming  65 
P.  L.  J.  689. 

The  Fiduciaries  Act  of  June  7,  1917,  Section  14,  P.  L.  447  makes  rents 
accruing  after  the  death  of  the  owner  of  real  estate  assets  for  payment  of 
his  debts,  when  the  personal  estate  is  insufficient,  and  provides  for  the 
collection  of  the  same  by  the  personal  representatives.  But  the  lien  of  the 
unsecured  debts  on  a  decedent's  real  estate  is  lost,  unless,  within  a  period 
of  one  year  after  the  decease  of  the  debtor,  an  action  for  the  recovery  be 
brought  against  his  personal  representatives.  Therefore,  if  a  creditor  has 
failed  to  commence  suit  within  one  year,  the  executor  or  administrator 
has  no  authority  afterward  to  apply  the  rents  from  the  real  estate  to  the 
payment  of  his  claim.  Kearney's  Est.,  30  Dist.  75. 

"It  was  no  omission  not  to  have  included  in  the  petition  for  the  order 
to  sell  the  real  estate  an  averment  that  with  the  rents  the  personal  estate 
is  insufficient  to  pay  the  debts.  It  is  only  by  virtue  of  the  Fiduciaries  Act 
of  1917  (Section  14),  that  rents  accruing  after  the  death  of  the  owner  of 
real  estate  can  become  assets  for  the  payment  of  debts ;  and  it  applies  only 
to  the  debts  of  such  as  died  on  or  after  the  date  it  became  effective,  which 
was  about  eight  years  after  the  death  of  Abraham  Bowman." 

Per  SMITH,  P.  J.,  in  Bowman's  Est.,  47  Pa.  C.  C.  405,  28  Dist.  766,  67 
P.  L.  J.  321,  36  Lane.  121,  33  York  2. 

418.  LIEN  OF  DEBTS  OF  DECEDENT;  LIEN  LIM- 
ITED TO  ONE  YEAR  UNLESS  ACTION 
BROUGHT,  INDEXED,  AND  DULY  PROSE- 
CUTED TO  JUDGMENT. 

SECTION  15.  (a)  No  debts  of  a  decedent,  including  the  cost  of 
settlement  of  the  estate,  and  the  funeral  expenses  of  the  decedent, 
except  as  provided  in  clauses  (b),  (g)  and  (h)  hereof,  shall  re- 


FIDUCIARIES  ACT— SECTION  15  (a)  321 

main  a  lien  on  the  real  estate  of  such  decedent  longer  than  one 
year  after  the  decease  of  such  debtor,  unless  within  said  period 
an  action  for  the  recovery  thereof  be  brought  against  the  executor 
or  administrator  of  such  decedent,  and  such  action  shall  be 
indexed,  within  said  period,  against  the  decedent  and  such  ex- 
ecutor or  administrator,  in  the  judgment  index  in  the  county  in 
which  such  action  is  brought,  and  also  in  the  county  in  which  the 
real  estate  sought  to  be  charged  is  situate,  and  be  duly  prosecuted 
to  judgment;  and  then  to  be  a  lien  only  for  the  period  of  five 
years  unless  the  same  be  revived  by  writ  of  scire  facias  against 
the  decedent,  his  heirs,  executors,  or  administrators,  and  the 
devisee,  alienee,  or  owner  of  the  land  sought  to  be  charged,  in 
the  manner  now  provided  in  the  case  of  the  revival  of  judgments. 

The  plaintiff  may,  at  his  election,  join  such  surviving  spouse 
and  heirs,  and  the  devisee,  alienee,  or  owner  of  the  land  in  such 
original  action,  in  which  event  such  action  shall  be  indexed  as 
aforesaid  against  all  defendants  so  joined.  In  any  action  brought 
under  this  section,  if  the  plaintiff  obtains  a  verdict  or  a  judgment 
or  an  award  by  an  auditor,  or,  before  obtaining  a  verdict  or  a 
judgment,  obtains,  by  the  orphans'  court  in  his  favor,  or  otherwise 
obtains  an  allowance  of  his  claim,  he  shall  also  be  allowed  costs 
of  suits,  without  regard  to  the  amount  of  his  claim,  and  without 
the  filing  of  an  affidavit  that  the  debt  due  or  damages  exceeds  the 
sum  of  one  hundred  dollars.  If  an  action  for  the  recovery  of  a 
debt  be  brought  as  aforesaid,  it  shall  be  deemed  to  have  been  duly 
prosecuted  to  judgment  if  award  in  favor  of  the  plaintiff  be  made 
by  an  auditor  or  the  orphans'  court,  or  if  the  claim  be  included  in 
a  schedule  of  distribution  and  the  latter  be  confirmed  by  the 
court.1 

NOTE. — This  is  the  first  part  of  Section  i  of  the  Act  of  May  3,  1909,  P. 
L.  386,  5  Purd.  5891,  changed  by  reducing  the  period  of  the  lien  to  one  year 
instead  of  two,  and  by  omitting,  for  the  sake  of  clearness,  the  provisions 
as  to  debts  not  payable  within  the  year,  which  are  embodied  in  clause  (b) 
of  this  section. 

The  Act  of  1909  apparently  repealed  by  implication  Section  I  of  the  Act 
of  June  14,  1901,  P.  L.  562,  I  Purd.  1106,  which  amended  Section  I  of  the 
Act  of  June  8,  1893,  P.  L.  392.  The  Act  of  1893  supplied  Section  24  of  the 
Act  of  1834,  which  was  derived  from  Section  4  of  the  Act  of  April  4, 
1797,  3  Sm.  L.  296. 

Section  5  of  the  Act  of  1909,  as  amended  by  the  Act  of  May  14,  1915, 
P.  L.  475,  5  Purd.  5892,  expressly  repeals  the  Act  of  June  18,  1895,  P  I/. 
197,  I  Purd.  1108,  and  Section  25  of  the  Act  of  February  24,  1834. 

Before  the  Act  of  1797,  the  lien  was  of  indefinite  duration.  That 
act  reduced  it  to  seven  years,  the  Act  of  1834  to  five  years,  and  the  Act  of 

21 


322  FIDUCIARIES  ACT— SECTION  15  (a) 

1893  to  two  years.  It  is  now  recommended  that  the  period  be  reduced  to 
one  year. 

The  words  "and  the  funeral  expenses  of  the  decedent"  have  been  inserted 
in  order  to  settle  the  question  whether  such  expenses  are  subject  to  the 
limitation  of  lien. 

The  last  sentence  is  new,  but  declaratory  of  the  law  as  laid  down  in  the 
decisions. 

There  seems  to  be  no  reason  why  the  lien  should  continue  longer  than 
one  year.  At  present  the  personal  estate  of  a  decedent  may  be  distributed 
at  the  expiration  of  one  year,  and  if  the  procedure  prescribed  by  law  be 
followed,  creditors  lose  their  grasp,  which  corresponds  to  a  lien,  upon  the 
fund  distributed.  It  is  perhaps  proper  that  the  lien  should  continue  for 
a  somewhat  longer  period  of  time  as  to  real  estate,  but  inasmuch  as,  ac- 
cording to  the  act  recommended,  the  time  allowed  for  the  settlement  of 
the  personal  estate  is  shortened  to  six  months,  the  Commissioners  recom- 
mend a  corresponding  abbreviation  of  the  lien  as  to  real  estate.  It  will,  of 
course,  not  be  forgotten  that  a  creditor  may  by  appropriate  proceedings 
under  this  section  continue  his  lien  for  a  longer  period. 

1The  portion  in  Italics  added  by  the  Amendment  of  June  7,  1919 
(P.  L.  412). 

Funeral  expenses  were  held  a  debt  under  the  section  in  Smith's  Est,  49 
Pa.  C.  C.  453,  29  Dist.  917. 

An  administrator  is  not  obliged  to  pay  and  it  is  no  part  of  his  duty  as 
administrator  to  pay  from  his  own  funds  the  debts  of  the  decedent  whom 
he  represents,  but  having  paid  them  his  claim  for  reimbursement  therefor 
becomes  that  of  an  unsecured  creditor  and  is  within  the  statute  of  lim- 
itations. 

The  Fiduciaries  Act  of  1917  repeals  absolutely  both  the  Acts  of  1901, 
P.  L.  562,  and  of  1909,  P.  L.  386,  relating  to  debts  of  decedents,  and  being 
retroactive,  the  costs  of  administration  accrued  prior  to  the  passage  of 
this  act  are  collectible  from  the  real  estate  and  will  be  allowed  from  a 
fund  in  the  hands  of  a  trustee  in  partition. 

Where  the  heirs  of  a  decedent  agreed  under  seal  that  a  debt  owing  by 
decedent  should  be  paid  "out  of  said  estate  upon  a  final  settlement  thereof," 
this  agreement  would  include  the  real  estate  as  well  as  the  personalty, 
would  toll  the  statute  and  the  claim  will  be  allowed  at  the  distribution  of  a 
fund  arising  from  partition,  but  without  interest,  the  principal  being  pay- 
able at  the  final  settlement  of  the  estate.  Olson's  Est.,  65  P.  L.  J.  571, 
34  Lane.  397- 

Clause  (a)  of  Section  15  of  the  Fiduciaries  Act  of  1917  (June  7,  1917, 
P.  L.  447)  provided  that  no  debts,  etc.,  of  a  decedent  shall  remain  a  lien 
on  his  real  estate  longer  than  one  year  after  the  decease  of  such  debtor 
unless  within  said  period  an  action  for  the  recovery  thereof  be  brought 
against  the  executor  ,or  administrator  of  such  decedent.  The  question  in- 
volved in  this  appeal  is  whether  Clause  (c)  of  said  section,  which  declares 
the  foregoing  provision  to  be  retroactive  is  unconstitutional.  There  can 
be  no  doubt  of  the  intention  of  the  legislature  to  make  it  retroactive  *  *  * 


FIDUCIARIES  ACT— SECTION  15  (a)  323 

Here  the  purpose  is  unmistakable ;  it  is  the  power  of  the  legislature  to 
enact  such  a  provision  which  is  questioned. 

The  appellant  contends  that  it  is  violative  of  Article  I,  Section  17,  of  the 
Constitution,  which  provides ;  "No  ex  post  facto  law,  nor  any  law  impair- 
ing the  obligation  of  contracts  *  *  *  shall  be  passed."  The  term,  ex 
post  facto,  as  used  in  the  Constitution  of  the  United  States  and  of  this 
State  is  limited  to  penal  statutes,  and  may  be  defined  as  one  which  imposes 
a  punishment  for  an  act  which  was  not  punishable  when  it  was  committed, 
imposes  additional  punishment  or  changes  the  rules  of  evidence  by  which 
less  or  different  testimony  is  sufficient  to  convict ;  8  Cyc.  1027 ;  Calder  v. 
Bull,  3  Dallas,  386  p.  390.  Clearly  the  Fiduciaries  Act  of  1917  is  not  an 
ex  post  facto  law  in  respect  to  Clause  (c)  aforesaid.  Does  it  impair  the 
obligation  of  contracts?  If  not,  it  is  not  prohibited  by  the  Constitution. 
Gault's  App.  33  Pa.  94. 

It  is  not  contended  that  the  decedent  entered  into  any  contract  with  the 
appellant  that  his  debt  to  her  should  be  a  lien  on  his  real  estate  for  any 
specified  period  after  his  death.  She  lent  him  one  thousand  dollars  on 
July  19,  1915,  and  took  his  simple  promissory  note  therefor  dated  the  same 
day  and  payable  one  year  thereafter.  The  fact  that  upon  his  death  this 
debt  became  a  lien  on  his  real  estate,  was  due  to  the  provisions  of  an  early 
statute  of  Pennsylvania,  which  thus  gave  her  a  means  of  recovering  the 
debt  owing  her  by  said  decedent;  but  it  transferred  to  her  no  right  of 
property ;  a  lien  is  not  a  title  to  a  thing,  but  a  right  to  present  a  claim 
against  it  and  demand  payment  out  of  it.  Taylor  y.  Carryl,  24  Pa.  259,  p. 
266  *  *  * 

On  full  consideration,  we  are  of  opinion  that  the  clause  of  the  Act  of 
1917  in  question  did  not  impair  the  obligation  of  any  contract  between  the 
appellant  and  the  decedent,  and  is,  therefore,  constitutional.  The  act  did 
not  take  away  from  the  plaintiff  at  the  time  of  its  approval  any  vested 
right;  she  was  not  deprived  of  her  right  to  pursue  her  remedy;  on  the 
contrary  it  was  specifically  preserved ;  the  legislature  simply  limited  the 
time  within  which  she  could  assert  her  claim  against  the  decedent's  real 
estate,  but  did  not  deprive  her  of  the  claim  itself.  There  can  be  no  question 
as  to  the  reasonableness  of  the  time  allowed  her,  for  she  was  given  the 
same  time  to  bring  her  suit  that  is  granted  to  creditors  of  persons  dying 
since  the  passage  of  the  act.  For  a  whole  year  thereafter  the  appellant 
might  have  preserved  her  claim  and  the  right  to  enforce  payment  out  of 
the  decedent's  real  estate,  but  having  done  nothing  during  that  period  she 
is  barred  by  her  own  inaction  from  looking  to  that  fund  or  security  for 
payment  of  her  debt.  The  outcome  is  unfortunate  but  it  is  the  result  of 
her  sleeping  on  her  rights. 

The  praecipe  for  the  indexing  of  the  action  in  the  judgment  index,  in 
accordance  with  the  provisions  of  Clause  (d)  of  the  same  section,  showed 
that  the  decedent  had  died  over  a  year  before  suit  was  brought.  It  was, 
therefore,  irregular  on  its  face  and  furnished  no  legal  warrant  for  the  entry 
in  the  judgment  index,  and  the  court  below  was  justified  in  ordering  such 
entry  to  be  stricken  from  the  records. 

The  appellant  however  had  the  right  to  bring  her  action  against  the  ex- 
ecutor of  the  decedent,  and  to  prosecute  the  same  to  judgment,  irrespective 


324  FIDUCIARIES  ACT— SECTION  15  (a) 

of  the  Act  of  1917.  Any  judgment  obtained  therein  would  not  be  a  lien  on 
the  decedent's  real  estate,  but  would  be  entitled  to  share  in  the  distribution 
of  any  personalty  that  might  come  into  the  executor's  hands.  The  court, 
therefore,  went  too  far  in  ordering  the  action  to  be  dismissed.  The  mis- 
take was,  no  doubt,  inadvertent  and  would  have  been  corrected  if  the 
matter  had  been  called  to  the  court's  attention.  We  know  of  no  warrant, 
however,  for  joining  the  deceased  person  as  a  co-defendant  with  the  ex- 
ecutor in  such  action.  Even  under  the  Act  of  1917,  the  action  is  to  be 
brought  against  the  executor  or  administrator,  but  indexed  against  the 
decedent,  and  his  legal  representatives.  We  will  consider  the  caption  of  the 
suit  to  have  been  so  amended."  KELLER,  J.,  in  Myers  v.  Lohr,  72  Super. 
472,  affirming  66  P.  L.  J.  665,  8  Leh.  119,  19  Lack.  287.  See  also  Kirk  v. 
Van  Horn,  265  Pa.  549,  109  Atl.  522;  Olson's  Est,  65  P.  L.  J.  57 1,  34 
Lane.  397;  Scherrer's  Est.,  7  West.  109. 

Under  Section  15  (a)  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447, 
which  limits  the  liability  of  a  decedent's  real  estate  for  his  debts  to  one 
year,  the  word  "debts"  includes  the  costs  of  settling  the  estate  and  the 
funeral  expenses. 

The  retroactive  character  of  this  section  does  not  render  it  unconstitu- 
tional, for  no  contractual  obligation  is  thereby  impaired. 

Although  the  statute  shortens  the  period  of  limitation  of  actions,  it 
gives  a  reasonable  time  for  the  commencement  of  a  suit,  and  is,  therefore, 
constitutional.  *  *  *  The  amount  due  the  widow  for  counsel  fee, 
commissions  and  funeral  expenses  was  a  lien  on  the  real  estate  as  of 
June  7,  1917,  when  the  Fiduciaries  Act  was  approved.  Under  the  old  law 
these  items  were  an  indefinite  lien,  but  the  Fiduciaries  Act  of  June  7, 
1917,  P.  L.  447,  changed  their  status  by  including  them  as  "debts"  of  a 
decedent,  and  limiting  the  lien  of  decedent's  debts  to  the  period  of  one 
year.  A  year  having  now  elapsed  since  June  7,  1917,  the  claim  for  these 
items  lost  its  lien,  and  the  real  estate  ceased  to  be  liable.  Cassady's  Est., 
28  Dist.  37,  32  York  155. 

Under  Section  15  of  the  Fiduciaries  Act  of  June  /,  1917,  P.  L.  44".  com- 
mon debts,  the  costs  of  settling  the  estate,  and  the  funeral  expenses  of  a 
decedent  shall  not  remain  a  lien  on  the  real  estate  of  such  decedent  longer 
than  one  year  after  the  decease  of  such  debtor,  unless  within  said  period 
an  action  for  the  recovery  thereof  be  brought  against  the  executor  or 
administrator  of  such  decedent,  and  such  action  be  indexed,  within  said 
period,  against  the  decedent,  and  such  executor  or  administrator  in  the 
judgment  index  in  the  county  in  which  such  action  is  brought,  and  also  in 
the  county  in  which  such  real  estate  sought  to  be  charged  is  situate,  and  be 
duly  prosecuted  to  judgment;  however,  in  the  case  of  a  decedent  who 
died  before  the  passage  of  said  act,  the  lien  of  such  debts,  was  preserved 
by  bringing  and  indexing  such  action  within  one  year  after  the  passage  of 
the  act  Gibb's  Est.,  30  Dist.  128,  34  York  29. 

The  Fiduciaries  Act  of  June  7,  1917,  Section  14,  P.  L.  447,  makes  rents 
accruing  after  the  death  of  the  owner  of  real  estate  assets  for  payment  of 
his  debts,  when  the  personal  estate  is  insufficient  and  provides  for  the  col- 
lection of  the  same  by  the  personal  representatives.  But  the  lien  of  the 
unsecured  debts  on  a  decedent's  real  estate  is  lost  unless,  within  a  period 


FIDUCIARIES  ACT— SECTION  15  (a),    (6)  325 

of  one  year  after  the  decease  of  the  debtor,  an  action  for  the  recovery  be 
brought  against  his  personal  representatives.  Therefore,  if  a  creditor  has 
failed  to  commence  suit  within  one  year,  the  executor  or  administrator  has 
no  authority  afterwards  to  apply  the  rents  from  the  real  estate  to  the  pay- 
ment of  his  claim.  Kearney's  Est.,  30  Dist.  75. 

Testator  provided  that  his  residuary  estate,  real,  personal  and  mixed,  was 
to  be  sold  by  his  executors  and  the  proceeds  divided  in  varying  proportions 
among  certain  legatees.  More  than  a  year  after  his  death  some  of  his 
real  estate  was  sold  by  the  executors  and  the  proceeds  brought  into  their 
account,  which  showed  the  estate  was  insolvent :  Held,  That  debts  for  which 
no  action  had  been  brought  within  one  year  from  the  date  of  the  death,  as 
required  by  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  were  entitled 
to  share  in  the  proceeds  of  the  real  estate  so  sold  pro  rata  with  those  for 
which  suit  had  been  brought  on  the  ground  that  there  had  been  a  con- 
version of  the  real  estate.  Hoch's  Est.,  48  Pa.  C.  C.  149,  28  Dist.  416,  68 
P.  L.  J.  207,  37  Lane.  98. 

419.     DEBTS  NOT  DUE  WITHIN  ONE  YEAR;    PRO- 
CEDURE TO  ACQUIRE  AND  CONTINUE  LIEN. 

(b)  No  bond,  covenant,  debt  or  demand  which  is  not  payable 
within  the  said  period  of  one  year  after  the  decease  of  the  debtor, 
shall  remain  a  lien  upon  the  real  estate  of  such  decedent  longer 
than  one  year  after  his  death,  unless,  within  said  period  after  his 
decease,  a  copy  or  particular  written  statement  thereof  be  filed  in 
the  office  of  the  prothonotary  of  the  county  where  the  real  estate 
to  be  charged  is  situate,  and  be  indexed  against  the  decedent  and 
the  executor  or  administrator  in  the  judgment  index  in  the  county 
where  the  executor  or  administrator  resides  and  also  in  the  county 
in  which  the  real  estate  sought  to  be  charged  is  situate ;  and  then 
to  be  a  lien  only  for  the  period  of  one  year  after  the  said  bond, 
covenant,  debt,  or  demand  becomes  due,  unless  within  said  period 
of  one  year  an  action  for  the  recovery  thereof  be  brought,  indexed 
and  duly  prosecuted  to  judgment  as  provided  in  clause  (a)  of  this 
section.  Provided,  That  when  such  bond,  covenant,  debt,  or  de- 
mand does  not  become  due  within  five  years  from  the  date  of  the 
death  of  such  decedent,  a  renewal  of  the  entry  of  such  action 
upon  the  judgment  index  as  aforesaid,  shall,  upon  the  order  of  the 
plaintiff  or  his  attorney  duly  filed  in  said  prothonotary' s  office,  be 
noted  on  said  index  within  every  recurring  period  of  five  years, 
otherwise  the  same  shall  cease  to  be  a  lien.1 

NOTE. — This  is  founded  upon  those  provisions  of  Section  I  of  the  Act  of 
May  3,  1909,  omitted  from  Clause  (a). 

xThe  portion  in  italics  added  by  Amendment  of  May  2,  1919,  (P.  L.  104). 


326  FIDUCIARIES  ACT— SECTION  15  (fe),  (c) 

The  petitioner's  claim  to  the  rents  from  the  real  estate,  based  upon  the 
Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  under  the  provisions  of  Section 
14,  which  makes  rents  accruing  after  the  death  of  the  owner  of  such  real 
estate  assets  for  payment  of  debts  when  the  personal  estate  is  insufficient 
and  for  the  collection  of  the  same  by  the  personal  representatives,  does  not 
come  within  the  exception  provided  by  Clause  (fr)  as  amended  by  the  Act 
of  May  2,  1919,  P.  L.  104,  Kearney's  Est.,  30  Dist.  75. 

420.     PROVISIONS  OF  CLAUSE   (A)  TO  BE  RETRO- 
ACTIVE;  SAVING  CLAUSE. 

(c)  The  provisions  of  clause  (a)  of  this  section  shall  be  retro- 
active: Provided,  however,  That  in  case  of  any  bond,  covenant, 
debt,  or  demand  that  would  be  sooner  barred,  an  action  for  the 
recovery  thereof  may  be  commenced  within  one  year  after  the 
passage  of  this  act,  in  manner  as  provided  in  clause  (a)  of  this 
section. 

NOTE.— This  is  Section  2  of  the  Act  of  June  14,  1901,  P.  L.  562,  I  Purd. 
1108,  modified  in  phraseology. 

Where  a  decedent  died  May  23rd,  1916,  the  unsecured  debts  will  not  ex- 
pire or  be  barred  as  to  lien  against  the  real  estate  before  the  7th  of  June, 
1918,  under  the  provisions  of  Section  15  (a)  and  (c)  of  the  Act  of  7  June, 
1917,  P.  L.  447- 

"In  the  present  case  the  decedent  died  on  the  23rd  day  of  May,  1916. 
Under  the  old  statute,  the  time  would  expire  on  the  23rd  day  of  May,  1918. 
Under  the  new  statute,  death  the  23rd  day  of  May,  1916,  one  year  from  that 
time  was  the  23rd  day  of  May,  1917. 

"Thus  it  appears  that,  under  the  new  statute,  the  time  would  have  expired, 
if  the  retroactive  clause  would  have  been  applied,  without  the  provision 
in  it,  on  the  23rd  day  of  May,  1917,  and  it  would,  therefore,  have  been 
'sooner  barred'  than  the  date  of  the  act,  and  the  time  given  by  the  express 
language  of  the  act  for  the  commencement  of  actions  would  be  for  one 
year  after  the  passage  to  wit :  the  7th  day  of  June,  1918,  being  the  date  of 
expiration.  We  conclude,  therefore,  that  these  debts,  so  far  as  unsecured, 
would  continue  liens  not  only  to  the  23rd  day  of  May,  1918,  which  would  be 
ample  time  to  make  a  sale  in  this  case,  but  even  the  /th  day  of  June,  1918, 
the  date  of  the  act  plus  one  year. 

"The  only  estate's  which  this  act  affects,  about  which  there  can  be  any 
doubt,  are  those  of  persons  dying  between  the  7th  day  of  June,  1915.  and 
the  7th  day  of  June,  1917,  the  date  of  adoption  of  the  Fiduciaries  Act. 
As  to  all  persons  dying  on  the  7th  day  of  June,  1915,  unsecured  claims 
against  their  estates  would  be  barred  at  the  time  of  the  new  act,  and  as  to 
persons  dying  after  the  7th  day  of  June,  1917,  claimants  have  only  one 
year  in  which  to  bring  suit.  What  'retroactive,'  therefore,  means  is  that 
the  Act  of  the  /th  day  of  June,  1917,  shall  affect  the  estates  of  persons 
dying  between  the  7th  day  of  June,  1915,  and  the  7th  day  of  June,  1917. 
But  the  proviso  in  the  act  saves  all  claims  which  would  be  barred  in  less 


FIDUCIARIES  ACT— SECTION  15  (c),  (d),  (*)  327 

than  a  year  from  the  date  of  its  passage,  or,  in  other  words,  what  the  act 
means  is  that  every  unsecured  creditor  of  any  decedent  dying  on  and  after 
the  7th  day  of  June,  1915,  has  until  the  7th  day  of  June,  1918,  to  bring 
suit.  Per  COPELAND,  P.  J.  in  Schcrrer's  Est.,  7  West.  109. 

See  also  Olson's  Est,  65  P.  L.  J.  571,  34  Lane.  397;  Gibb's  Est.,  30  Dist. 
128,  34  York  29;  Cassady's  Est.,  28  Dist.  37,  32  York  155. 

The  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  is  not  unconstitutional 
because  it  is  retroactive,  so  that  a  suit  not  brought  against  the  estate  of  a 
decedent,  who  had  died  prior  to  its  enactment,  within  one  year  of  decedent's 
death,  will  not  be  a  lien  against  decedent's  real  estate.  Such  lien  would 
have  been  valid  had  suit  been  entered  within  one  year  after  June  7,  1917. 

Myers  v.  Lohr,  66  P.  L.  J.  665,  19  Lack.  287,  8  Leh.  119,  affirmed  in 
72  Super.  472. 

421.  INDEXING  B Y  PROTHONOTARY;  FILING  CER- 

TIFIED COPY  OF  PR^CIPE  IN  OTHER 
COUNTIES. 

(d)  It  shall  be  the  duty  of  the  prothonotary  of  any  county  of 
this  commonwealth,  when  an  action  is  brought  or  statement  is 
filed  as  aforesaid  in  his  office,  upon  praecipe  of  the  plaintiff  or  his 
attorney,  to  index  the  same  against  the  decedent,  his  executor  or 
administrator,  and  any  other  defendants  therein,  in  the  judgment 
index,  as  other  liens  are  indexed,  and  to  certify  the  same  as  liens 
in  any  certificate  of  liens  that  he  may  be  required  to  make  by 
virtue  of  his  office.    The  prothonotary  of  any  court  in  which  said 
action  may  be  brought,  shall,  upon  request,  furnish  a  copy  of  such 
prsecipe,  which,  when  duly  certified,  under  the  seal  of  the  court, 
may  be  filed  in  any  other  county  of  this  commonwealth  in  which 
the  real  estate  sought  to  be  charged  with  the  debts  of  such  de- 
cedent may  be  situate,  and  when  so  filed  shall  be  indexed,  against 
the  parties  named  therein,   upon  the   judgment  index  in   such 
county. 

NOTE. — This  is  the  latter  part  of  Section  I  of  the  Act  of  May  3,  1909, 
P.  L.  386,  5  Purd.  5891.  The  last  part  of  the  first  sentence  has  been  added 
to  cover  the  provisions  of  the  Act  of  June  15,  1871,  P.  L.  387,  4  Purd. 
4060,  in  so  far  as  they  relate  to  this  subject. 

See  Myers  v.  Lohr,  72  Super.  472,  affirming  66  P.  L.  J.  665,  19  Lack.  28, 
8  Leh.  119. 

422.  EXECUTIONS      ON     JUDGMENTS     OBTAINED 

AGAINST  EXECUTORS  OR  ADMINISTRA- 
TORS; SCIRE  FACIAS  TO  SURVIVING 
SPOUSE,  HEIRS,  ETC. 

(e)  No  execution  for  the  levy  or  sale  of  any  real  estate  of  any 
decedent  shall  be  issued  upon  any  judgment  obtained  in  an  action 


328  FIDUCIARIES  ACT— SECTION  15  (<?),  (/) 

against  his  personal  representatives  under  the  foregoing  clauses 
of  this  section  unless  the  surviving  spouse  and  heirs  and  the 
devisee,  alienee  or  owner  of  the  land  sought  to  be  charged,  and  the 
guardians  of  such  as  are  minors  shall  have  been  made  parties  to 
such  action,  or,  if  they  shall  not  have  been  so  made  parties, 
unless  they  shall  be  warned  by  a  writ  of  scire  facias  issued  against 
them  on  such  judgment.  If  any  of  the  parties  reside  outside  of 
the  county,  the  court  may,  by  general  rule  or  special  order,  direct 
service  of  such  writ  of  scire  facias  by  publication  or  otherwise. 

NOTE. — This  is  a  new  clause,  inserted  to  take  the  place  of  Section  34  of 
the  Act  of  1834,  i  Purd.  1113,  now  recommended  for  repeal,  and  declara- 
tory of  the  law  as  laid  down  in  the  decisions  from  Murphy's  Appeal,  8 
W.  &  S.  165,  Atherton  v.  Atherton,  2  Pa.  112,  and  Walthaur  v.  Gossar,  32 
Pa.  259,  261,  where  Section  34  was  termed  "a  bungling  enactment,"  down 
to  McCormick  v.  Skelly,  201  Pa.  184. 

423.  JUDGMENTS  NOT  LIENS  AT  DEATH  TO  BE 
TREATED  AS  DEBTS  NOT  OF  RECORD; 
METHOD  OF  CONTINUING  LIEN. 

(/)  Judgments  which  were  not  liens  on  the  real  estate  of  the 
decedent  by  entry  or  revival,  by  due  process  of  law,  within  five 
years  prior  to  the  death  of  such  decedent,  shall  not  be  revived  as 
liens  of  record  against  real  estate  by  the  death  of  the  defendant, 
but  shall  rank  and  be  treated  simply  as  ordinary  debts  not  of 
record,  and  the  lien  thereof  shall  be  continued  after  the  expiration 
of  one  year  from  the  decease  of  such  debtor  only  by  writ  of  scire 
facias  to  revive,  issued  within  one  year  after  the  death  of  the 
decedent,  indexed  as  provided  in  clauses  (a)  and  (d)  of  this 
section,  and  duly  prosecuted  to  judgment;  and  then  to  be  a  lien 
only  for  the  period  of  five  years  unless  the  same  be  revived  by 
writ  of  scire  facias  as  provided  in  clause  (a)  of  this  section. 

NOTE.— This  is  Section  2  of  the  Act  of  May  3,  1909,  P.  L.  386,  5  Purd. 
5892.  It  has  been  altered  by  inserting  the  words  "of  record"  in  line  4,  and 
the  word  "not"  in  line  6,  the  latter  word  having  been  omitted,  apparently 
by  inadvertence,  from  the  Act  of  1909.  The  last  part  of  the  section  has 
been  rewritten,  in  order  to  make  it  plain  that  such  judgments  are  liens  as 
debts  not  of  record  for  one  year  only,  and  that  the  mode  of  continuing  the 
lien  is  by  sci.  fa.  and  not  by  action  of  assumpsit  on  the  judgment,  as  was 
apparently  provided  by  the  Act  of  1909. 


FIDUCIARIES  ACT— SECTION  15  (p),  (h)  329 

424.  JUDGMENTS  WHICH   ARE  LIENS  AT  DEATH 

TO    BE    LIENS     FOR     FIVE    YEARS    FROM 
DEATH;  REVIVAL. 

(g)  All  judgments  which  at  the  time  of  the  death  of  a  dece- 
dent shall  be  liens  on  real  estate  owned  by  said  decedent  at  the 
time  of  his  death,  or  on  real  estate  which  shall  have  been  conveyed 
by  deed  not  duly  recorded  during  his  lifetime,  shall  continue  to 
bind  such  real  estate  during  the  term  of  five  years  from  his  death, 
although  such  judgments  be  not  revived  by  scire  facias  or  other- 
wise after  his  death.  Such  judgments  shall,  during  such  term, 
rank  according  to  their  priority  at  the  time  of  such  death,  and 
after  the  expiration  of  such  term  such  judgments  shall  not  con- 
tinue liens  on  the  real  estate  of  such  decedent  unless  revived  by 
scire  facias  or  otherwise,  according  to  the  laws  regulating  the 
revival  of  judgments.  Any  judgment  against  such  decedent  which 
may  be  a  lien  upon  real  estate  sold  or  aliened  by  such  decedent 
during  his  life  may  be  revived  by  writ  of  scire  facias,  according 
to  law ;  and,  for  the  purpose  of  any  such  revival,  the  writ  of  scire 
facias  may  be  issued  in  the  name  of  such  decedent,  with  the  same 
force  and  effect  as  if  it  were  issued  in  the  name  of  his  executors, 
administrators,  or  legal  representatives ;  but,  before  any  judgment 
shall  be  entered  thereon,  the  legal  representatives  shall  be  made 
parties  defendant,  and  a  scire  facias  shall  be  served  on  such  legal 
representatives. 

NOTE. — This  is  Section  3  of  the  Act  of  May  3,  1909,  P.  L.  386,  as  amended 
by  the  Act  of  May  14,  1915,  P.  L,.  475,  5  Purd.  5892.  See  Brubaker's  Est., 
59  Pa.  Superior  Ct.  109. 

425.  EFFECT  OF  SECTION  AS  TO  MORTGAGES  AND 

BONDS  SECURED  THEREBY. 

(h)  Nothing  contained  in  this  section  shall  in  any  way  affect 
or  impair  the  lien  of  any  mortgage  given  and  executed  and  duly 
recorded  during  the  lifetime  of  any  decedent;  but  the  bond 
secured  by  such  mortgage,  except  as  to  real  estate  on  which  said 
mortgage  is  a  lien,  shall  be  subject  to  all  the  provisions  hereof. 

NOTE. — This  is  Section  4  of  the  Act  of  Msy  3,  1909,  P.  L.  386,  5  Purd. 
5892. 

Section  52  of  the  Act  of  July  16,  1842,  P.  L.  388,  i  Purd.  1109,  provides, 
in  part:  "In  cases  of  intestacy,  where  the  real  estate  of  the  decedent  shall 
be  sold  under  an  order  of  the  orphans'  court  for  distribution,  before  the 
expiration  of  five  years  from  the  death  of  the  intestate,  the  administrators 
are  authorized  to  apply  the  proceeds  of  such  sale,  whilst  in  their  hands,  to 


330  FIDUCIARIES  ACT— SECTION  15  (/>),   (i),  (/) 

the  payment  of  debts  and  claims  owing  by  the  decedent,  for  which  there 
may  not  be  other  assets  in  hand  *  *  *  Provided,  That  if,  before  any  such 
payment  be  made,  the  distributees  of  the  proceeds  of  such  real  estate,  their 
guardians  or  agents,  shall  *  *  *  give  written  notice  to  such  administrators, 
objecting  to  such  payment,  then  and  in  such  case,  this  section  shall  not 
justify  the  same,  unless  such  real  estate  were  or  may  be  otherwise  legally 
liable  to  such  payment."  The  omitted  portions  of  the  section  related  to  past 
cases.  See  2  P.  &  L.  Dig.  of  Laws,  col.  2697,  for  the  full  text. 

The  meaning  and  purpose  of  the  section  are  not  clear,  nor  do  the  de- 
cisions make  them  so.  It  is  recommended  that  the  section  be  repealed. 

426.  EXECUTIONS  ON  JUDGMENTS  OBTAINED  IN 

DECEDENT'S  LIFETIME. 

(*)  No  execution  for  the  levy  or  sale  of  any  real  or  personal 
estate  of  any  decedent  shall  be  issued  upon  any  judgment  obtained 
against  him  in  his  lifetime,  unless  his  personal  representatives  have 
been  first  warned  by  a  writ  of  scire  facias  to  show  cause  against 
the  issuing  thereof,  notwithstanding  the  teste  of  such  execution 
may  bear  date  antecedently  to  his  death. 

NOTE. — This  is  a  part  of  Section  33  of  the  Act  of  1834,  I  Purd.  1113, 
which  corresponded,  as  to  the  first  sentence,  to  Section  34  of  the  Commis- 
sioner's Draft,  and  was  new  in  the  Act  of  1834. 

427.  DISTRIBUTION  OF  PROCEEDS  OF  SHERIFF'S 

SALE. 

(;)  In  all  cases  where  property,  real  or  personal,  of  a  decedent 
is  sold  upon  an  execution,  and  more  money  raised  than  is  suffi- 
cient to  pay  off  liens  of  record,  the  balance  shall  be  paid  over  to 
the  executor  or  administrator  for  distribution;  but  before  any 
such  payment  shall  be  made,  such  executor  or  administrator  shall 
give  bond,  to  the  satisfaction  of  the  court,  conditioned  for  the 
legal  distribution  of  such  money:  Provided  always,  That  such 
money  shall  be  distributed  as  the  real  estate  of  which  it  is  the 
proceeds  would  have  been. 

NOTE. — This  is  the  remainder  of  Section  33  of  the  Act  of  1834.  See 
Fidelity  Insurance  Trust  &  S.  D.  Co.  v.  Sampson,  209  Pa.  214, 

Under  this  section  of  the  Fiduciaries  Act,  P.  L.  447,  where  there  is  a 
balance  left  in  the  sheriff's  hands  for  distribution  after  the  sale  of  real 
estate  payable  to  a  fiduciary,  the  bond  of  the  fiduciary  must  be  entered  in 
the  court  of  common  pleas  in  which  the  fund  has  been  raised;  hence,  the 
orphans'  court  is  without  jurisdiction  to  fix  the  amount  of  the  security. 

This  section  of  the  Fiduciaries  Act  is  a  re-enactment  of  Section  33  of 
the  Act  of  February  24,  1834,  P.  L.  70,  and  the  practice  established  under 
the  earlier  act  should  be  followed  under  the  later. 


FIDUCIARIES  ACT— SECTIONS  15  (/),  (*),  (/)-i6  (o)         331 

Where  the  practice  has  been  long  settled  under  a  statute  prescribing  the 
mode  of  doing  a  certain  act,  a  re-enactment  of  the  statute  in  the  same 
words  should  be  construed  as  approving  and  confirming  the  practice,  un- 
less it  is  entirely  clear  that  such  practice  is  defective  in  the  very  substance 
of  the  requirements  of  the  law.  Catafesta's  Est.,  28  Dist.  304. 

428.  STAY  OF  EXECUTION  UNTIL  APPLICATION 

TO  ORPHANS'  COURT  FOR  SALE  OF  REAL 
ESTATE. 

(&)  In  every  case  of  an  execution  against  the  executors  or  ad- 
ministrators of  a  decedent,  whether  founded  upon  a  judgment 
obtained  against  such  decedent  in  his  lifetime,  or  upon  a  judgment 
obtained  against  them  in  their  representative  character,  if  it  shall 
be  made  to  appear,  to  the  satisfaction  of  the  court  issuing  such  ex- 
ecution, that  there  is  reason  to  believe  that  the  personal  assets 
and  the  rents  of  real  estate  are  insufficient  to  pay  all  just  demands 
upon  the  estate,  such  court  shall  thereupon  stay  all  proceedings 
upon  such  execution,  until  the  executors  or  administrators  shall 
have  made  application  to  the  proper  orphans'  court  for  the  sale  of 
the  real  estate  of  the  decedent,  or  for  the  apportionment  of  the 
assets,  or  both,  as  the  case  may  require. 

NOTE. — This  is  Section  35  of  the  Act  of  1834,  I  Purd.  1114,  with  the  ad- 
dition of  the  words  "and  the  rents  of  real  estate,"  to  conform  to  Section 
14  of  this  draft.  (See  417  supra.) 

This  and  the  next  section  were  new  in  the  Act  of  1834. 

429.  ORDER  ON  EXECUTORS  OR  ADMINISTRA- 

TORS TO  APPLY  TO  ORPHANS'  COURT. 

(/)  It  shall  be  competent  for  the  court,  in  the  cases  aforesaid, 
on  application  of  the  plaintiff  in  such  judgment,  or  of  any  other 
person  interested  as  heir,  devisee  or  otherwise,  to  order  the  execu- 
tors or  administrators  to  make  application  to  the  orphans'  court 
for  the  purpose  as  is  hereinbefore  mentioned,  and  to  enforce  such 
order  by  attachment. 

NOTE. — This  is  Section  36  of  the  Act  of  1834,  I  Purd.  1114. 

430.  SALES    AND    MORTGAGES    OF   REAL   ESTATE 

FOR  PAYMENT  OF  DEBTS  OF  DECEDENTS, 
—DUTY  OF  EXECUTOR  OR  ADMINISTRA- 
TOR TO  SELL  REAL  ESTATE  WHERE  PER- 
SONAL ESTATE  AND  RENTS  ARE  INSUF- 
FICIENT TO  PAY  DEBTS. 

SECTION  1 6.  (a)  Whenever  it  shall  satisfactorily  appear  to  the 
executor  or  administrator  that  the  personal  estate  of  the  decedent, 


332  FIDUCIARIES  ACT— SECTION  16  (a),   (6)  i 

together  with  the  rents  of  real  estate,  is  insufficient  to  pay  all  just 
debts  and  the  expenses  of  the  administration,  he  shall  proceed, 
without  delay,  in  the  manner  hereinafter  provided,  to  sell  or 
mortgage,  under  the  direction  of  the  orphans'  court  having  juris- 
diction of  his  accounts,  so  much  of  the  real  estate  as  shall  be  nec- 
essary to  supply  the  deficiency. 

NOTE. — This  is  Section  20  of  the  act  of  February  24,  1834,  I  Purd.  1116. 
The  first  part  requires  executors  and  administrators  to  proceed  to  sell 
real  estate  for  payment  of  debts.  The  last  clause  was  copied  from  Section 
21  of  the  Act  of  April  19,  1794,  3  Sm.  i,.  143. 

The  provision  as  to  rents  is  new,  and  is  inserted  because  of  the  pro- 
vision of  Section  14  (see  417  supra)  of  the  present  draft,  making  rents 
assets  for  the  payment  of  debts.  "In  the  manner  hereinafter  provided"  is 
substituted  for  "In  the  manner  provided  by  law."  "Or  mortgage"  is  in- 
serted after  "to  sell." 

At  the  end,  the  following  words  are  omitted:  "and  such  real  estate  so 
sold  shall  not  be  liable  in  the  hands  of  the  purchaser  for  the  debts  of  the 
decedent"  This  is  covered  by  clause  (o)  of  the  present  section  of  the 
draft.  (See  454  infra.) 

Where  executors  are  proceeding  without  delay  under  Section  16  of  the 
Fiduciaries  Act  to  sell  real  estate  for  the  payment  of  debts,  it  appearing 
satisfactorily  to  them  that  the  personal  estate  is  insufficient  to  pay  the  debts, 
the  petition  for  such  sale  will  have  priority  over  a  petition  for  partition 
filed  by  the  husband  and  heir. 

Young's  Est  (No.  i),  28  Dist  814,  67  P.  L.  J.  315. 

431.  POWER  OF  ORPHANS'  COURT  TO  AUTHORIZE 

SALE  OR  MORTGAGE  OF  REAL  ESTATE. 

(fc)  The  orphans'  court  which  possesses  jurisdiction  of  the 
accounts  of  an  executor  or  administrator  shall  have  power  to 
authorize  a  sale  or  mortgage  of  real  estate  by  such  executor  or 
administrator  in  the  following  cases,  viz. : — 

432.  ON  APPLICATION  OF  EXECUTOR  OR  ADMIN- 

ISTRATOR. 

i.  On  the  application  of  the  executor  or  administrator,  setting 
forth  that  the  personal  estate  and  the  rents  of  real  estate  of  the 
decedent  are  insufficient  for  the  payment  of  debts. 

NOTE. — This  is  the  introductory  part,  with  clause  I,  of  Section  31  of  the 
Act  of  March  29,  1832,  i  Purd.  1116.  The  words  "or  guardian"  have  been 
omitted  after  "administrator"  in  the  second  line.  The  provision  as  to  rents 
has  been  inserted  for  the  reason  stated  in  the  last  preceding  note. 

At  the  end,  the  following  words  have  been  omitted:  "and  maintenance 
and  education  of  his  minor  children,  or  for  the  purpose  of  paying  the  debts 


FIDUCIARIES  ACT— SECTION  16  (&)  i,  2,  (e)  333 

alone."  The  subject  of  maintenance  and  education  of  children  is  covered 
by  the  revised  Price  Act. 

For  the  same  reason,  clause  III  of  Section  31  of  the  Act  of  1832  is  now 
omitted.  That  clause  reads :  "On  the  application  of  a  guardian,  setting 
forth  that  the  personal  estate  of  the  minor  is  insufficient  for  his  mainte- 
nance and  education,  or  for  the  improvement  and  repair  of  other  parts  of 
his  real  estate,  or  that  the  estate  of  said  minor  is  in  such  a  state  of  dilap- 
idation and  decay,  or  so  unproductive  and  expensive,  that  it  would  be  to 
the  interest  and  benefit  of  said  minor,  in  the  judgment  of  said  court,  that 
the  said  estate  should  be  sold ;  and  the  orphans'  court  of  the  county  where- 
in any  such  real  estate  may  be  situate,  shall  have  the  same  authority  to 
direct  a  sale  in  this  latter  case  as  in  the  cases  particularly  mentioned  in 
Section  32  of  this  act." 

The  Commissioners  of  1830  reported  that,  in  Section  31  (Section  32  of 
their  draft),  they  had  collected  all  existing  provisions  giving  jurisdiction 
to  authorize  a  sale  of  real  estate  by  an  executor,  administrator  or  guardian. 
Clause  I  was  derived  from  Section  19  of  the  Act  of  April  19,  1794,  3  Sm. 
L.  143,  amended  by  the  Act  of  April  8,  1826,  P.  L.  255.  Clause  II  was 
founded  on  Section  2  of  the  Act  of  April  i,  1811,  P.  L,.  198.  Clause  III 
was  derived  from  Section  10  of  the  Act  of  April  7,  1807,  P.  L.  155. 

433.  ON  APPLICATION  OF  EXECUTOR  OR  ADMIN- 

ISTRATOR OR  CREDITOR. 

2.  On  the  application  of  such  executor  or  administrator,  or  of 
any  creditor  of  the  decedent,  setting  forth  that  on  the  final  settle- 
ment of  the  administration  account,  it  appears  that  the  personal 
assets  together  with  the  rents  of  real  estate  of  the  decedent  are 
insufficient  to  pay  the  balance  appearing  to  be  due  from  the  estate 
of  such  decedent,  either  to  the  accountant  or  creditors. 

NOTE. — This  is  clause  II  of  Section  31  of  the  Act  of  March  29,  1832, 
i  Purd.  1118,  with  the  substitution  of  "creditor  of  the  decedent"  for 
"person  interested"  in  the  second  line,  and  the  addition  of  the  provision 
as  to  rents  of  real  estate. 

434.  INVENTORY,  STATEMENT  OF  REAL  ESTATE 
AND  ACCOUNT  OF  DEBTS  TO  BE  FILED. 

(c)  No  authority  for  the  sale  or  mortgage  of  real  estate,  for 
the  payment  of  debts  of  a  decedent,  shall  be  granted  until  the 
executor  or  administrator  shall  have  exhibited  to  the  court  having 
jurisdiction  of  his  accounts  a  true  and  perfect  inventory  and  con- 
scionable  appraisement  of  all  the  personal  estate  whatsoever  of  the 
decedent,  together  with  a  full  and  correct  statement  of  all  the  real 
estate  of  such  decedent,  wherever  situated,  which  has  come  to  his 
knowledge,  and  of  the  rental  value  of  such  real  estate ;  and  also 


334  FIDUCIARIES  ACT— SECTION  16  (c),  (d)  . 

a  just  and  true  account,  upon  oath  or  affirmation,  of  all  the  debts 
of  the  decedent  which  have  come  to  his  knowledge. 

NOTE.— This  is  Section  33  of  the  Act  of  March  29,  1832,  i  Purd.  1118, 
which,  except  for  the  provision  as  to  a  statement  of  the  real  estate,  made 
no  change  in  the  law,  and  was  largely  founded  upon  Section  20  of  the 
Act  of  April  19,  1794,  3  Sm.  L.  143- 

It  is  now  changed  by  omitting  the  references  to  guardians  and  minors, 
by  omitting  the  provision  as  to  bonds,  in  view  of  the  general  section  on 
that  subject  in  this  draft,  and  by  omitting,  as  unnecessary  or  obsolete,  the 
proviso,  which  reads  as  follows :  "Provided,  That  no  real  estate  contained 
in  any  marriage  settlement  shall,  by  virtue  of  this  act,  be  sold  or  disposed 
of,  contrary  to  the  form  and  effect  of  such  settlement;  and  that  the  man- 
sion house,  or  most  profitable  part  of  the  estate,  shall  be  reserved  to  the 
last" 

The  provision  as  to  rental  value  is  new. 

An  enumeration  of  a  debt  in  a  petition  for  leave  to  sell  real  estate  to 
pay  debts  shows  sufficient  knowledge  thereof  to  warrant  judgment  against 
the  administrator  in  an  action  of  assumpsit  In  so  holding  the  court  said : 

"The  defendant  sets  up  as  a  defense  that  she  was  unable  to  get  suffi- 
cient ^information  to  make  a  defense.  This  is  undoubtedly  a  good  defense 
in  some  cases,  but  in  the  present  case  there  is  no  merit  in  it.  The  defend- 
ant had  knowledge  of  the  claim,  and  this  is  shown  by  the  fact  set  forth 
in  the  petition  of  plaintiffs  for  the  rule,  and  not  denied  by  defendant, 
that  the  defendant  had  previously  filed  a  petition  in  the  Orphans'  Court 
of  Philadelphia  County  for  leave  to  sell  real  estate  of  the  decedent  for 
the  payment  of  debts,  and  among  the  debts  enumerated  therein  was  "claim 
of  Carmine  Spinelli,  No.  521  Carpenter  street,  $2,126.76"  being  the  present 
claim.  This  was  done  in  accordance  with  the  requirements  of  the  Fiduci- 
ary Act  of  June  7,  1917,  par.  (c )  P.  L.  480,  that  the  defendant  set  forth 
"a  just  and  true  account,  upon  oath  or  affirmation,  of  all  of  the  debts  of 
the  decedent  which  have  come  to  his  knowledge,"  and  the  orphans'  court, 
upon  this  information,  granted  the  order  of  sale.  In  addition  to  this, 
defendant  herself,  since  the  death  of  her  husband,  has  paid  the  interest 
on  the  mortgages  of  which  the  decedent  received  the  principal,  which  he 
appropriated  to  his  own  use.  Under  these  circumstances,  it  does  not  now 
lie  in  the  mouth  of  the  defendant  to  say  she  has  no  knowledge  of  plain- 
tiffs claim."  Spinelli  v.  Costello,  30  Dist.  411. 

435.     REFUNDING  MORTGAGES. 

(d)  When  a  mortgage  authorized  under  the  provisions  of  this 
section  shall  fall  due  or  shall  be  about  to  fall  due,  the  orphans' 
court  which  authorized  such  mortgage  may,  on  the  application  of 
the  executor  or  administrator  or  of  any  party  in  interest,  and  al- 
though the  period  of  the  lien  of  the  decedent's  debts  may  have 
expired  at  the  time  of  such  application,  authorize  the  refunding 


FIDUCIARIES  ACT— SECTION  16  (rf),  (<?),  (/)  335 

of  such  mortgage  and  the  making  of  a  new  bond  and  mortgage, 
the  proceeds  of  which  may  be  used  for  the  payment  and  satisfac- 
tion in  whole  or  in  part  of  the  said  existing  mortgage  and  neces- 
sary expenses.  Such  new  mortgage  may  be  for  such  period  and 
on  such  terms  as  to  said  court  shall  deem  advisable. 

NOTE. — This  clause  is  introduced  to  cover  a  case  which  has  arisen  in 
practice,  and  in  which  the  jurisdiction  of  the  courts  is  at  present  doubtful. 

436.  APPOINTMENT  OF  MASTER. 

(e)  In  all  cases  where  an  application  shall  be  made  to  the  court 
for  a  decree  authorizing  the  sale  or  mortgage  of  real  estate  under 
the  provisions  of  this  section,  the  court  may  appoint  a  suitable 
person  as  master  to  investigate  the  facts  of  the  case,  and  to  report 
upon  the  expediency  of  granting  the  application,  and  the  amount 
to  be  raised  by  such  sale  or  mortgage ;  and  upon  such  report  being 
made,  the  court  may  decree  accordingly. 

NOTE. — This  is  Section  34  of  the  Act  of  1832,  i  Purd.  1119,  which  was 
new  in  the  Act  of  1832.  A  master  is  now  provided  for  instead  of  one  or 
more  auditors,  and  the  phraseology  has  been  modified. 

437.  BOND  OF  PERSON  CARRYING  OUT  DECREE. 

(/)  In  all  cases  where  the  carrying  out  of  any  decree  of  the 
orphans'  court  under  the  provisions  of  this  section  shall  involve 
the  receipt  of  money  by  the  person  carrying  it  out,  the  court  shall 
direct  the  person  acting  under  the  decree  to  file  a  bond  to  the  com- 
monwealth in  a  sufficient  amount  conditioned  for  the  proper  appli- 
cation of  all  moneys  to  be  received,  which  bond  shall  inure  to  the 
benefit  of  all  parties  interested  and  be  executed  by  two  individual 
sureties  or  by  one  corporate  surety,  approved  by  the  court,  and  no 
such  decree  shall  be  executed  until  such  bond,  with  sureties  as  may 
be  required,  shall  be  filed:  Provided,  That  where  a  corporation, 
duly  authorized  by  law,  shall  be  designated  to  carry  out  any  such 
decree,  the  court  may,  in  lieu  of  security  as  aforesaid,  permit  such 
corporation  to  enter  its  own  bond  without  surety. 

NOTE. — This  section  is  founded  on  Section  43  of  the  Act  of  February 
24,  1834,  i  Purd.  1 122,  the  proviso  to  Section  4  of  the  Price  Act,  4  Purd. 
4022,  and  Section  5  of  the  Act  of  April  3,  1851,  I  Purd.  1120.  The  proviso 
is  new. 

Where  a  bond  has  been  entered  in  accordance  with  the  Act  of  June  7, 
1917,  P.  L.  447,  after  the  orphans'  court  has  decreed  a  sale  of  a  decedent's 
real  estate,  a  second  bond  need  not  be  ordered  in  a  decree  for  a  resale, 


336  FIDUCIARIES  ACT— SECTION  16  (/),  (g)     . 

as  the  one  already  entered  will  cover  the  proceeds  of  the  second  sale.    In 
so  holding,  SCHAFFEK,  J.,  said: 

"One  of  the  errors  complained  of  is  that,  upon  a  resale  of  the  property 
ordered  by  the  court,  no  bond  was  given.  The  assumption  of  the  appel- 
lant is,  and  he  so  presents  his  cause  to  us,  that  the  court  ordered  an  addi- 
tional bond  on  the  resale;  an  examination  of  the  record  discloses  no 
such  order  made.  When  the  first  sale  was  decreed,  a  bond  was  directed 
to  be  given  in  accordance  with  the  Act  of  June  7,  1917,  P.  L.  447  (at  page 
480),  which  provides  that  no  decree  of  sale  shall  be  executed  until  a  bond 
shall  be  filed.  The  first  sale  was  set  aside  on  petition  of  the  appellant,  on 
account  of  inadequacy  of  price;  on  the  second  sale,  no  new  bond  was 
ordered  or  given,  for  the  all-sufficient  reason  that  the  bond  already  on  file 
covered  the  purchase  money  realized  by  this  sale,  just  as  it  did  the  pro- 
ceeds of  the  first  one."  Randall's  Est,  269  Pa.  530,  112  Atl.  780. 

438.     PUBLIC  NOTICE  OF  SALE. 

(g)  Whenever,  by  the  provisions  of  this  section,  it  shall  be 
lawful  for  the  court  to  order  the  public  sale  of  real  estate,  public 
notice  of  such  sale  shall  be  given  by  the  person  who  is  to  make  the 
sale,  once  a  week  for  a  period  of  three  weeks  before  the  day  ap- 
pointed therefor,  by  advertisement  in  at  least  one  newspaper  pub- 
lished in  the  county,  if  there  be  one,  or,  if  there  be  none,  then  in 
an  adjoining  county;  and  in  all  cases,  notice  shall  also  be  given 
by  handbills,  one  of  which  shall  be  posted  at  a  conspicuous  place 
on  the  real  estate  proposed  to  be  sold,  and  at  least  three  of  which 
shall  be  posted  at  three  of  the  most  public  places  in  the  vicinity  of 
such  estate. 

NOTE. — This  is  Section  54  of  the  Act  of  March  29,  1832,  i  Purd.  1121, 
with  the  omission  of  the  word  "orphans' "  in  line  2,  and  the  words,  "execu- 
tor, administrator  or  guardian,  as  the  case  may  be,"  the  substitution  of 
"once  a  week  for  a  period  of  three  weeks"  for  "at  least  twenty  days," 
and  the  substitution  of  "person"  in  line  4,  and  the  insertion  of  the  pro- 
vision as  to  posting  on  the  premises.  The  section  was  new  in  the  Act 
of  1832. 

"This  takes  the  place  of  Section  54  of  the  Act  of  March  29,  1832,  P.  L. 
190,  which  provided  that  public  notice  of  the  sale  should  be  advertised 
"at  least  twenty  days  before  the  day  appointed  therefor."  What  is  meant 
by  "once  a  week  for  a  period  of  three  weeks";  what  does  it  prescribe  and 
circumscribe?  Manifestly  twenty-one  days  is  not  intended,  for  if  it  had 
been  the  words  twenty-one  days  would  have  been  used  as  "twenty  days" 
were  in  the  Act  of  1832.  This  is  a  legitimate  inference  from  the  fact  that 
the  later  act  follows  literally  the  earlier  one.  Quite  as  improbable  is  it 
that  the  equivalent  of  twenty-one  days,  or  three  weeks,  is  intended ;  for 
if  so  the  sentence  would  not  have  been  decorated  with  the  words  "a  pe- 
riod of."  The  gentlemen  who  framed  the  Fiduciaries  Act  of  1917  are 
lawyers  and  scholars,  and  judicious  brevity  and  judicial  finish  mark  their 


FIDUCIARIES  ACT— SECTION  16  (g),  (h),   («)  337 

excellent  accomplishment.  It  follows  that  the  words  "a  period  of"  were 
intended  to  have  as  they  do  a  significantly  qualifying  effect.  By  referring 
to  the  dictionaries  it  will  be  seen  that  the  word  "period"  is  a  Greek  deriva- 
tive. The  word  is  a  compound  of  two  Greek  words,  the  first  meaning 
"round  about,"  the  other  "a  way."  Among  the  definitions  given  are  "a 
portion  of  time  as  limited  and  determined  by  some  recurring  phenome- 
non" ;  "a  stated  and  recurring  interval  of  time ;  more  generally,  an  interval 
of  time  specified  or  left  indefinite."  The  definition  which  apparently  was 
in  the  mind  of  the  commissioners  and  which  has  a  rational  application  is 
"a  division  of  time  in  which  something  is  completed."  Without  fear  of 
contradiction  it  can  be  said  that  it  has  not  been  enacted  that  the  notice 
shall  have  been  advertised  for  three  weeks,  or  twenty-one  days,  before  the 
day  of  the  sale.  If  a  sale  has  been  advertised  within  a  period  of  each  of 
three  weeks  preceding  the  day  appointed  therefor  and  the  sale  has  been 
completed  within  a  period  of  three  weeks,  the  provision  of  the  act  has  not 
been  violated;  and  that  was  done  in  this  case,  though  only  twenty  days 
had  elapsed.  Certainly  it  was  advertised  "round"  or  "about"  three  weeks. 
The  words  "a  period  of"  were  not  incorporated  heedlessly,  without  de- 
sign; and  if  the  interpretation  given  misses  their  purpose,  what  were  they 
for?  They  ease  the  confining  condition  of  the  act  of  1832  and  allow  a 
latitude  which  permits  of  enough  room  to  avoid  a  shock  to  common  sense 
and  save  the  court  a  gibe  of  being  a  red-tape  institution. 

Per  SMITH,  P.  J.,  in  Bowman's  Est.,  47  Pa.  C.  C.  405,  28  Dist.  766,  67  P. 
L.  J.  321,  36  Lane.  Rev.  121,  33  York  2,  wherein  it  was  held  that  under 
this  section  of  the  Fiduciaries  Act  which  provides  that  a  public  sale  of 
real  estate  shall  be  advertised  "once  a  week  for  a  period  of  three  weeks" 
an  advertisement  within  a  period  of  each  of  three  weeks  is  sufficient  al- 
though covering  only  twenty  days  prior  to  the  sale  and  in  a  petition 
to  sell  real  estate  of  a  decedent  for  payment  of  debts  it  is  not  necessary 
to  set  forth  all  the  parties  interested  or  the  names  of  husbands  or 
guardians  of  those  who  are  married  or  minors. 

439.  SECURING  UNPAID  PURCHASE  MONEY. 

(h)  Whenever,  under  the  provisions  of  this  section,  the  court 
has  power  to  authorize  or  confirm  a  sale  of  real  estate,  the  same 
may  be  made  upon  such  terms  as  the  court  shall  approve,  all  unpaid 
purchase  money  to  be  secured  on  the  premises  by  mortgage. 

NOTE. — This  is  derived  in  part  from  Section  4  of  the  Price  Act,  4  Purd. 
4022,  and  is  intended  to  supersede  Section  i  of  the  Act  of  March  22,  1859, 
P.  L.  207,  3  Purd.  3386,  relating  to  sales  on  credit,  which  is  recommended 
for  repeal. 

440.  ACKNOWLEDGMENT  OF  DEEDS  AND  MORT- 

GAGES. 

(i)  All  deeds  or  mortgages  executed  in  pursuance  of  any  decree 
of  the  court  under  the  provisions  of  this  section  may  be  acknowl- 
edged before  any  officer  or  person  now  or  hereafter  authorized  by 

22 


338  FIDUCIARIES  ACT— SECTION   16  («),   0"),  «• 

the  laws  of  this  commonwealth  to  take  the  acknowledgment  of 
deeds  and  other  instruments  of  writing  to  be  recorded  therein. 

NOTE. — This  clause  is  designed  to  make  the  law  relating  to  the  acknowl- 
edgment of  instruments  executed  under  the  authority  of  the  section  similar 
to  the  general  law  prevailing  in  such  cases.  There  seems  to  be  no  -reason 
now  for  making  any  special  distinction  as  to  the  acknowledgment  of  such 
instruments. 

441.     REMOVAL  OR  INCAPACITY  OF  FIDUCIARY,— 
BEFORE  CONVEYANCE  OR  MORTGAGE. 

(/)  i.  In  all  cases  where  the  sale  of  real  estate  shall  be  made 
by  an  executor  or  administrator  under  an  order  of,  or  confirmed 
by,  the  orphans'  court,  or  where  the  making  of  a  mortgage  by  such 
executor  or  administrator  shall  be  authorized  by  said  court,  under 
the  provisions  of  this  section,  and  the  letters  testamentary  or  of 
administration  shall  be  revoked,  or  the  executor  or  administrator 
shall  be  removed  by  the  court,  or  shall  die,  or  become  insane,  or 
otherwise  be  incapable,  before  a  conveyance  is  made  to  the  pur- 
chaser, or  before  a  mortgage  is  executed  and  delivered,  it  shall  be 
lawful  for  the  successor  of  such  executor  or  administrator,  having 
first  given  security,  to  be  approved  by  the  said  court,  for  the  faith- 
ful appropriation  of  the  proceeds  of  such  sale  or  mortgage,  to 
execute  and  deliver  to  the  purchaser  a  deed  of  conveyance  for  the 
estate  so  sold,  on  the  purchaser's  full  compliance  with  the  terms 
and  conditions  of  sale,  or  to  execute  and  deliver  said  mortgage. 
If  there  shall  be  no  such  successor  who  shall  have  given  security 
as  aforesaid,  the  said  court  shall  have  power,  on  petition  of  the 
purchaser,  to  direct  the  clerk  of  the  court  to  execute  and  deliver 
to  the  purchaser  the  necessary  deed  of  conveyance,  on  his  full 
compliance  with  the  terms  and  conditions  of  sale,  paying  into  court 
the  moneys  payable,  and  executing  and  delivering  to  the  clerk  any 
bond  and  mortgage  required  by  the  said  terms  and  conditions, 
which  moneys  and  bond  and  mortgage  shall  remain  subject  to  the 
disposition  of  the  court ;  or,  where  the  making  of  a  mortgage  by 
an  executor  or  administrator  shall  be  authorized  by  said  court, 
the  court,  under  the  circumstances  aforesaid,  shall  have  power  to 
direct  the  clerk  of  the  court  to  execute  and  deliver  such  mortgage. 
The  like  proceedings  may  be  had  where  an  executor  or  adminis- 
trator shall  neglect  or  refuse  to  execute  and  deliver  such  deed  or 
mortgage  for  the  space  of  thirty  days  after  due  notice  of  an  order 
of  the  court  requiring  him  to  execute  and  deliver  the  same. 


FIDUCIARIES  ACT— SECTION  16  (/)   i,  2,  3  339 

NOTE. — This  is  founded  on  Section  47  of  the  Act  of  March  29,  1832, 
I  Purd.  H2I  (Section  35  of  the  Commissioners'  Draft),  which  was  de- 
rived from  the  Act  of  April  2,  1802,  3  Sm.  L.  499. 

In  the  present  draft,  a  provision  as  to  revocation  of  letters  has  been 
added,  the  section  has  been  extended  so  as  to  include  mortgages,  and  the 
provision  that  deeds  made  in  pursuance  of  the  section  shall  vest  the  prop- 
erty as  effectually  as  if  made  by  the  persons  who  sold  the  property  has 
been  omitted,  being  covered  by  a  later  clause.  The  words  "the  said  court 
shall  have  power"  have  been  substituted  for  "it  shall  be  the  duty  of  the 
said  court,"  and  "bond  and  mortgage"  for  "sureties." 

The  words  "within  three  months  after  such  sale"  have  been  omitted 
before  "there  shall  be  no  such  successor,"  since  there  seems  to  be  no  reason 
why  proceedings  should  be  delayed  for  three  months. 

Section  i  of  the  Act  of  May  22,  1878,  P.  L.  83,  4  Purd.  4035,  provides  for 
cases  where  the  fiduciary  dies  before  execution  of  a  deed,  and  authorizes 
the  court  to  direct  the  clerk  to  deliver  a  deed,  without  limiting  this  author- 
ity to  cases  where  there  is  no  successor.  It  is  recommended  that  this  be 
repealed,  as  superseded  by  the  provisions  of  the  section  as  redrafted. 

442.  WHERE  THERE  ARE  CO-FIDUCIARIES. 

2.  In  all  cases  where  the  sale  of  real  estate  shall  be  made  by  co- 
executors  or  co-administrators  under  an  order  of,  or  confirmed  by, 
the  orphans'  court,  or  where  the  making  of  a  mortgage  by  such 
co-executors  or  co-administrators  shall  be  authorized  by  said  court, 
under  the  provisions  of  this  section,  and  one  $r  more  of  such  co- 
executors  or  co-administrators  shall  be  removed  by  said  court,  or 
shall  die,  or  become  insane,  or  otherwise  be  incapable,  before  a 
conveyance  is  made  to  the  purchaser,  or  before  such  mortgage  is 
executed  and  delivered,  said  court  may,  upon  the  facts  being  made 
to  appear  by  petition  duly  verified,  authorize  the  surviving  or  re- 
maining executor  or  executors,  administrator  or  administrators,  to 
execute  and  deliver  to  the  purchaser  a  deed  of  conveyance  for  the 
real  estate  so  sold,  on  the  purchaser's  full  compliance  with  the 
terms  and  conditions  of  sale,  or  to  execute  and  deliver  such  mort- 
gage. 

NOTE. — This  is  Section  i  of  the  Act  of  May  i,  1861,  P.  L.  431,  I  Purd. 
1123,  amended  so  as  to  conform  to  the  changes  made  in  the  last  preceding 
clause,  and  so  as  to  provide  for  an  order  of  the  court. 

443.  BEFORE  SALE. 

3.  Where  authority  is  or  shall  be  given  by  decree  of  any  orphans' 
court  to  executors  or  administrators  to  sell  real  estate,  under  the 
provisions  of  this  section,  and  any  of  such  executors  or  adminis- 
trators shall  have  died,  been  removed,  become  insane  or  otherwise 


340  FIDUCIARIES  ACT— SECTION  16  (;)  3,  4,  5  . 

be  incapable,  or  cease  to  act,  before  a  sale  is  effected,  in  all  such 
cases,  said  court  may,  upon  the  facts  being  made  to  appear  by 
petition  duly  verified,  authorize  the  surviving  or  remaining  execu- 
tor or  executors,  administrator  or  administrators  to  effect  such 
sale  with  as  full  effect  in  all  particulars,  as  if  effected  or  executed 
by  the  executors  or  administrators  in  office  at  the  time  the  sale 
was  originally  decreed. 

NOTE. — This  is  the  latter  part  of  Section  2  of  the  Act  of  May  i,  1861, 
P.  L.  431,  i  Purd.  1123.  The  first  part  of  that  section  provides  for  cases 
where  sale  had  been  made  before  the  passage  of  the  act;  this  seems  un- 
necessary now. 

The  part  which  is  retained  provides  for  cases  where  any  trustee  "or 
other  person"  authorized  to  sell  real  estate  had  died,  etc.;  and  the  last 
line  reads  "persons  acting  in  the  trust,  or  other  office,  at  the  time  a  sale 
was  originally  decreed."  The  meaning  of  the  words  "other  person"  and 
"other  office"  is  not  clear.  They  probably  refer  to  executors  and  admin- 
istrators, and  have  been  so  considered  in  the  present  draft  The  provision 
for  an  order  of  court  is  new. 

The  last  sentence  of  the  section  is  omitted  here,  being  covered  by  a 
subsequent  clause. 

444.  EFFECT  OF  SALE,  DEED  OR  MORTGAGE. 

4.  Every  sale  made,  and  every  deed  or  mortgage  executed  and 
delivered  in  pursuance  of,  and  agreeably  to  the  provisions  of  this 
section  shall  vest  the  property  therein  described  in  the  grantee  or 
mortgagee,  as  fully  and  effectually  as  if  the  same  had  been  made, 
executed  and  delivered  by  all  the  executors  or  administrators  to 
whom  the  authority  to  sell  or  mortgage  was  originally  given. 

NOTE. — This  is  derived  from  parts  of  Section  47  of  the  Act  of  March 
29,  1832,  i  Purd.  1 121,  and  Sction  2  of  the  Act  of  May  i,  1861,  P.  L.  431, 
i  Purd.  1123.  The  provisions  are  here  extended  to  mortgages. 

445.  REVOCATION  OF  LETTERS,  OR  REMOVAL  OF 

FIDUCIARY  AFTER  SALE. 

5.  In  all  cases  of  sales  or  mortgages  under  the  order  of,  or  con- 
firmed by  the  orphans'  court,  under  the  provisions  of  this  section, 
the  title  of  the  purchaser  or  mortgagee  shall  not  be  affected  by  the 
subsequent  revocation  of  the  letters  testamentary  or  of  adminis- 
tration of  the  executor  or  administrator  making  such   sale  or 
mortgage,  or  by  the  subsequent   removal   of   the   executor   or 
administrator  making  such  sale  or  mortgage. 

NOTE. — This  is  the  first  part  of  Section  16  of  the  Act  of  April  9,  1849, 
P.  L.  527,  i  Purd.  1123,  extended  to  include  mortgages,  with  the  substi- 


FIDUCIARIES  ACT— SECTION  16  (/)  5,  6,  (Jfe)  341 

tution  of  "or"  for  "and"  before  "confirmed,"  and  with  the  addition  of  the 
last  part,  beginning  "or  by  the  subsequent  removal." 

In  the  first  line,  the  words  "bona  fide,"  before  "sales,"  have  been  omitted 
as  unnecessary. 

The  last  part  of  that  section  provides  that  purchasers  at  orphans'  court 
sales  shall  have  a  right  to  proceed  to  obtain  possession  in  the  same  man- 
ner as  is  provided  by  law  as  to  purchasers  at  sheriffs'  sales.  This  seems 
unnecessary  now,  in  view  of  the  Act  of  April  20,  1905,  P.  L.  239,  5  Purd. 
6100,  providing  a  proceeding  for  the  obtaining  of  possession  by  "purchasers 
at  judicial  sales  of  real  estate  in  this  commonwealth." 

446.  EFFECT  OF  IRREGULARITY  OR  DEFECT  IN 

APPOINTMENT. 

6.  Whenever,  in  pursuance  of  proceedings  in  the  orphans'  court 
or  any  county  under  the  provisions  of  this  section,  any  person 
therein  described  as  an  executor  or  administrator  shall  grant  and 
convey  or  mortgage  any  real  estate,  in  which  proceedings  security 
shall  be  duly  entered  by  him  or  her,  under  the  order  or  decree  of 
the  court,  no  irregularity  or  defect  in  his  or  her  original  appoint- 
ment, or  the  absence  of  any  proper  qualification  in  respect  thereto, 
shall  affect  the  title  of  the  grantee  or  purchaser,  or  the  liability  of 
the  sureties,  but  the  same  shall  be  as  valid  in  all  respects  as  if  such 
irregularity  or  defect  had  not  existed. 

NOTE. — This  is  Section  i  of  the  Act  of  April  28,  1876,  P.  L.  50,  4  Purd. 
4033,  extended  to  include  mortgages.  The  words  "or  personal"  have  been 
omitted  before  "estate"  in  line  5,  and  the  words  "liability  of  the  sureties" 
substituted  for  "security  so  entered,"  before  "but  the  same  shall  be  as 
valid." 

The  proviso,  excluding  adjudicated  and  pending  cases,  has  also  been 
omitted. 

447.  CONVEYANCE  OR  MORTGAGE  WHERE  FIDU- 

CIARY IS  PURCHASER  OR  MORTGAGEE. 

(&)  Whenever  any  orphans'  court,  having  jurisdiction  under 
this  section  to  decree  a  sale  or  mortgage  of  real  estate,  shall  issue 
its  order  to  any  executor  or  administrator  to  sell  or  mortgage  such 
real  estate,  and  shall,  in  any  case  within  its  jurisdiction,  give  au- 
thority to  any  executor  or  administrator  to  bid  at  such  sale,  and 
shall  confirm  the  sale  to  such  fiduciary,  or  shall  authorize  the  mak- 
ing of  such  mortgage  to  any  executor  or  administrator,  the  said 
court  may  make  an  order  directing  its  clerk  to  execute  a  deed  or 
mortgage,  as  the  case  may  be,  for  said  real  estate  to  such  pur- 
chaser or  mortgagee,  who  shall  give  security  and  shall  account 


342  FIDUCIARIES  ACT— SECTION  16  (Jfe),  (0  i 

for  the  amount  of  said  purchase  money  or  mortgage  money,  in 
the  settlement  of  his  accounts,  to  said  court. 

NOTE.— This  is  Section  2  of  the  Act  of  May  22,  1878,  P.  L.  83,  4  Purd. 
4035,  modified  so  as  to  cover  mortgages  as  well  as  sales  of  real  estate, 
and  with  some  changes  in  phraseology. 

Section  3  of  the  Act  of  1878  validated  conveyances  theretofore  executed 
by  clerks. 

Section  45  of  the  Act  of  February  24,  1834,  i  Purd.  1122,  providing  for 
refunding  bonds  by  kindred  of  the  decedent  on  distribution  of  the  proceeds 
of  a  sale  of  real  estate,  is  recommended  for  repeal,  Section  41  of  the  act, 
providing  for  refunding  bonds  upon  distribution  of  the  personal  estate, 
having  been  omitted  in  the  present  draft. 

448.  REAL  ESTATE  IN  OTHER  COUNTIES,— REAL 
ESTATE  IN  COUNTY  OTHER  THAN  THAT 
THE  ORPHANS'  COURT  OF  WHICH  HAS 
JURISDICTION  OF  ACCOUNTS. 

(/)  i.  When  the  real  estate,  with  respect  to  which  application 
shall  be  made  to  the  orphans'  court  having  jurisdiction  of  the  ac- 
counts of  the  executor  or  administrator,  in  cases  of  sales  or  mort- 
gages for  the  payment  of  debts  of  decedents  under  clause  (&)  of 
this  section,  is  situated  in  the  same  county,  the  said  court  may 
order  the  sale  or  mortgage  of  such  part  or  so  much  of  such  real 
estate  as  to  them  shall  appear  necessary.  When  the  real  estate  is 
situated  wholly  in  another  county  or  counties,  and  the  orphans' 
court  to  which  such  application  shall  be  made  shall  be  satisfied  of 
the  propriety  of  a  sale  or  mortgage  of  some  portion  of  such  real 
estate  not  within  their  jurisdiction,  it  shall  be  lawful  for  such 
court  to  make  a  decree  authorizing  the  raising  of  so  much  money 
as  the  said  court  may  think  necessary,  from  real  estate  situated  in 
such  county  or  counties  as  they  may  designate ;  and  thereupon  it 
shall  be  the  duty  of  the  orphans'  court  of  the  county  wherein  the 
real  estate  so  designated  is  situated,  upon  the  petition  of  such 
executor  or  administrator,  to  make  an  order  for  the  sale  or  mort- 
gage, as  they  shall  think  expedient,  of  so  much  and  such  parts  of 
such  real  estate  as  shall,  in  their  opinion,  be  necessary  to  raise  the 
specified  sum ;  and  such  executor  or  administrator  shall  in  all 
cases  make  return  of  his  proceedings,  in  relation  to  such  sale  or 
mortgage,  to  the  orphans'  court  of  the  county  in  which  the  real 
estate  so  sold  or  mortgaged  lies:  Provided,  That  where  the  or- 
phans' court  to  which  such  application  shall  be  made  shall  make  a 
decree  authorizing  the  raising  of  money  from  real  estate  which  is 
wholly  without  the  county  where  such  application  shall  be  made 


FIDUCIARIES  ACT— SECTION  16  (/)   i,  2  343 

and  is  divided  by  a  county  line,  the  further  proceedings  shall  be 
in  the  orphans'  court  of  the  county  where  the  mansion  house  is 
situated,  or,  if  there  be  no  mansion  house,  in  the  county  where  the 
principal  improvements  are,  or,  if  there  be  no  improvements,  in 
either  county. 

NOTE. — This  is  Section  32  of  the  Act  of  March  29,  1832,  i  Purd.  1118, 
which  was  new  in  that  act.  Some  changes  have  been  made  in  phraseology. 
The  words  "or  in  the  same  and  another  county  or  counties"  have  been 
omitted  after  "when  the  real  estate  is  situated  wholly  in  another  county 
or  counties"  in  the  second  sentence,  the  case  of  real  estate  divided  by  a 
county  line  being  covered  by  the  proviso  and  by  subsequent  clauses.  The 
provision  as  to  confirmation  of  sale  has  been  omitted,  being  covered  by  a 
general  section  below.  The  proviso  is  new. 

It  has  been  held  that  Section  32  of  the  Act  of  1832  was  not  repealed  by 
the  Price  Act :  Burkhart's  Appeal,  i  Mona.  474. 

449.     REAL  ESTATE  DIVIDED  BY  COUNTY  LINE. 

2.  When  application  shall  hereafter  be  made  to  the  orphans' 
court  having  jurisdiction  of  the  accounts  of  any  executor  or  ad- 
ministrator for  leave  to  sell  or  mortgage  the  real  estate  of  a  de- 
cedent or  any  part  of  the  same  for  the  payment  of  debts  of  such 
decedent  under  the  provisions  of  this  section,  and  any  part  of  said 
real  estate  is  situated  partly  in  the  county  where  said  application 
shall  be  made  and  partly  in  one  or  more  other  counties,  by  reason 
of  a  county  line  or  lines  running  through  the  same,  the  said  court 
shall  have  power  to  order  and  direct  the  sale  or  mortgage  of  the 
whole  or  any  part  of  said  tract  of  land,  irrespective  of  the  county 
boundary  lines,  and  such  sale  or  mortgage  shall  be  as  effectual  to 
pass  the  title  of  such  real  estate  to  the  purchaser  or  mortgagee  as 
if  the  whole  of  said  tract  of  land  had  been  within  the  boundaries 
of  the  county  having  jurisdiction  of  the  accounts  of  the  executor 
or  administrator.  Notices  of  said  sale  or  mortgage,  as  required 
by  this  section,  shall  be  given  in  all  the  counties  in  which  the  land 
is  situated,  and  a  certified  copy  of  all  proceedings  in  connection 
with  said  sale  or  mortgage  shall  be  filed  in  the  orphans'  court  of 
each  county  in  which  said  land  is  situated.  Any  mortgage  taken 
by  such  executor  or  administrator  to  secure  the  purchase  money, 
or  any  part  thereof,  shall  be  duly  recorded  in  each  of  the  counties 
in  which  said  lands  lie,  as  now  required  by  law. 

NOTE. — This  is  a  combination  of  Section  i  of  the  Act  of  June  4,  1883, 
P.  L.  65,  i  Purd.  1 121,  relating  to  sales  by  executors  or  administrators, 
and  Section  i  of  the  Act  of  May  21,  1901,  P.  L.  272,  3  Purd.  3387,  relating 
to  sales  by  guardians.  The  word  "proper"  has  been  omitted  before  "or- 


344  FIDUCIARIES  ACT— SECTION  16  (/)  2,  (m)  i,  2 

phans'  court"  in  the  second  line.    The  references  to  confirmation  and  re- 
turn of  sale  and  to  judgments  and  other  obligations  have  been  omitted. 
The  Act  of  June  7,  1901,  P.  L.  513,  I  Purd.  1123,  validating  previous 
sales,  may  be  allowed  to  stand. 

450.  PRIVATE  SALES,— WHEN  AUTHORIZED. 

(m)  i.  The  orphans'  courts  of  the  several  counties  of  this  com- 
monwealth, in  all  cases  where,  under  the  provisions  of  this  section, 
such  courts  have  power  to  order  the  sale  of  real  estate,  may  au- 
thorize or  direct  a  private  sale,  if,  in  the  opinion  of  the  court,  under 
all  the  circumstances,  a  better  price  can  be  obtained  at  private  than 
at  public  sale,  as  where  the  interest  shall  be  undivided,  or  for  any 
other  sufficient  cause. 

NOTE.— This  is  Section  i  of  the  Act  of  May  g,  1889,  P.  L.  182,  i  Purd. 
1121,  altered  by  substituting  "under  the  provisions  of  this  section"  for 
"under  existing  laws,"  by  omitting,  after  "the  sale  of  real  estate"  the  words 
"for  the  payment  of  the  debts  of  decedents  and  for  other  purposes,"  and 
by  substituting  "authorize  or  direct"  for  "decree  and  approve." 

Before  this  act,  the  court  had  no  jurisdiction  to  decree  a  private  sale 
for  the  payment  of  debts:  Miller  v.  Spear,  21  W.  N.  C.  554;  McPherson 
v.  Cunliff,  ii  S.  &  R.  422. 

Section  2f  of  the  Act  of  May  21,  1901,  P.  L.  272,  4  Purd.  4034,  authoriz- 
ing private  sales  "for  the  payment  of  debts  of  a  ward  and  for  other 
purposes,"  is  also  covered  by  the  present  section  and  should  be  repealed. 
What  was  meant  by  sales  "for  the  payment  of  debts  of  a  ward"  is  not 
clear,  no  previous  act  having  authorized  such  sales. 

451.  PUBLIC  NOTICE. 

2.  Before  authorizing  or  directing  any  private  sale  of  real  estate 
for  payment  of  debts  of  a  decedent,  public  notice  thereof  shall  be 
given  by  advertisement  printed  in  at  least  one  newspaper,  published 
in  the  county  where  such  real  estate  is  situated,  once  a  week  for  a 
period  of  three  weeks  prior  to  the  date  fixed  by  such  order  for 
authorizing  or  directing  such  sale;  and  also  written  or  printed 
notices,  one  of  which  shall  be  posted  at  a  conspicuous  place  on  the 
real  estate  proposed  to  be  sold,  and  at  least  three  of  which  shall  be 
posted  at  three  of  the  most  public  places  in  the  vicinity  of  such 
real  estate;  and,  before  authorizing  or  directing  such  sale,  the 
court  shall  require  proof,  by  affidavit  to  be  filed  in  the  proceeding, 
that  notice  as  aforesaid  has  been  given.  Such  notice  shall  specify 
the  location  and  description  of  the  real  estate  proposed  to  be  sold, 
the  name  of  the  proposed  purchaser  and  the  price  agreed  to  be  paid. 


FIDUCIARIES  ACT— SECTION  16  (m)  2,  3  345 

NOTE. — This  is  founded  on  Sections  i  and  2  of  the  Act  of  June  9,  191 1, 
P.  L.  724,  6  Purd.  7037,  and  the  amendment  of  June  12,  1913,  P.  L,.  470, 
6  Purd.  7037. 

The  changes  made  are  to  substitute  "authorizing  or  directing"  for  "au- 
thorizing, decreeing,  or  approving,"  to  omit  the  provision  for  advertise- 
ment in  the  legal  periodical,  to  change  "for  at  least  twenty  days"  to  "once 
a  week  for  a  period  of  three  weeks,"  and  to  add  the  last  sentence. 

452.    OBJECTIONS  TO  SALE. 

3.  On  the  day  fixed  by  such  order  and  notice  for  authorizing  or 
directing  such  private  sale,  any  creditor  of  such  decedent,  or  party 
interested  as  heir,  devisee  or  intending  purchaser,  or  any  legatee 
whose  legacy  is,  by  the  express  terms  of  the  will,  or  by  law, 
charged  on  such  real  estate,  may  appear  and  object  to  such  private 
sale  on  account  of  the  insufficiency  of  the  price,  and,  if  such  ob- 
jection be  sustained,  may  offer  to  give  or  pay  a  substantial  increase 
for  such  property,  and  the  court,  at  its  discretion,  may  thereupon 
authorize  or  direct  such  sale,  or  refuse  to  authorize  or  direct  the 
same,  and  accept  any  substantially  increased  offer,  and  may  author- 
ize the  sale  of  such  property  to  such  new  bidder  upon  compliance 
with  the  conditions  of  sale  and  giving  such  security  as  shall  be 
directed  by  the  court ;  or,  such  creditor,  party  interested  or  legatee 
may  appear  as  aforesaid  and  object  to  such  sale  on  any  legal  or 
equitable  grounds :  Provided,  That  nothing  herein  contained  shall 
be  construed  to  affect  the  existing  law  with  respect  to  objections 
to  public  sales. 

NOTE. — This  is  founded  on  Section  3  of  the  Act  of  June  9,  1911,  P.  L. 
724,  6  Purd.  7037. 

The  provision  as  to  legacies  charged  on  land  is  new,  as  is  the  provision 
for  objection  to  the  sale  on  grounds  other  than  insufficiency  of  price. 
Several  changes  have  also  been  made  in  the  phraseology. 

Section  4  of  the  Act  of  1911  (6  Purd.  7037)  validated  sales  previously 
made  under  the  Act  of  1889,  and  need  not  be  reenacted.  The  same  is 
true  of  the  Acts  of  April  4,  1901,  P.  L.  66,  I  Purd.  1121,  and  April  10, 
1915,  P.  L.  112,  6  Purd.  7289,  and  the  Act  of  July  21,  1913,  P.  L.  871, 
5  Purd.  5893,  validating  sales  and  mortgages  made  under  order  of  the 
orphans'  court. 

Under  the  language  of  the  Fiduciaries  Act  and  the  Revised  Price  Act 
of  1917  relating  to  private  sales  of  real  estate,  and  the  confirmation  of 
same,  it  is  the  duty  of  the  court  to  accept  any  substantially  increased  offer 
over  that  offered  by  the  purchaser.  As  a  matter  of  practice,  offers  should 
be  in  writing  accompanied  by  a  certified  check  for  the  increase.  It  was 
never  intended  that  the  parties  should  make  oral  bids  in  open  court.  In 
so  holding,  STEWART,  P.  J.,  after  reviewing  the  facts,  said: 


346  FIDUCIARIES  ACT— SECTION  16  (m)  3,  (n),  (o) 

"Those  sections  are  not  found  in  the  original  acts,  but  under  the  old 
acts,  the  court  unhesitatingly  set  aside  private  sales  for  inadequacy  of  price. 
********** 

"We  have  no  rule  of  court  on  this  subject,  nor  do  we  find  any  in  the 
orphans'  court  rules  of  Philadelphia  county,  but  in  the  case  of  Early's 
Estate,  24  Pa.  Dist.  Rep.  153,  Judge  DALLETT  ordered  that  a  private  sale 
of  property  for  $30,000  should  be  set  aside  and  a  public  sale  granted  upon 
the  parties  filing  bond.  In  that  case  the  private  sale  had  been  confirmed. 
The  application  was  to  set  it  aside  and  the  petitioner  offered  to  pay  $33,000 
for  the  property.  On  the  argument  counsel  for  the  first  petitioner  offered 
$34i5oo.  The  deed  had  not  been  delivered,  and  the  court  made  the  above 
order,  putting  the  property  up  at  public  sale.  In  the  present  case  the  appli- 
cation by  Reuben  was  to  have  the  property  put  up  at  public  sale.  We  do 
not  think  the  increase  offered  justifies  the  expense  of  a  public  sale.  It 
may  be  necessary  to  formulate  a  rule  of  court  upon  this  subject.  It  is 
certainly  irregular  to  permit  oral  bids  as  was  done  in  this  case,  and  in 
Early's  Estate."  Mauch's  Est,  47  Pa.  C.  C.  490,  67  P.  L.  J.  308,  33  York 
45,  16  North.  405. 

453.  RETURN  AND  CONFIRMATION. 

(«)  All  public  sales  of  real  estate  under  the  provisions  of  this 
section  shall  be  subject  to  confirmation  by  the  court;  but  in  the 
case  of  private  sales  authorized  or  directed  under  the  provisions 
of  this  section,  no  return  or  confirmation  shall  be  necessary. 

NOTE. — This  is  a  new  section,  introduced  in  order  to  make  the  practice 
uniform  and  free  from  doubt. 

Where  authority  is  given  to  a  fiduciary  to  make  public  sale  of  real  es- 
tate, obviously  the  fiduciary  should  make  return  of  his  doings  to  the  court 
and  have  the  sale  confirmed ;  but  the  same  reason  would  not  apply  where, 
as  in  the  case  of  a  private  sale,  the  price  and  terms  of  sale  and  the  name 
of  the  purchaser  appear  in  the  petition.  The  court  having  approved  the 
sale  and  directed  that  it  be  carried  out,  it  seems  unnecessary  for  the  fidu- 
ciary to  report  to  the  court  and  obtain  a  confirmation  of  what  he  was  in- 
structed to  do. 

454.  DISCHARGE  OF  LIENS. 

(o)  All  public  or  private  sales  of  real  estate  under  the  provi- 
sions of  this  section  shall  have  the  effect  of  judicial  sales  as  to  the 
discharge  of  liens  upon  the  real  estate  so  sold :  Provided,  That  the 
court  may  decree  a  sale  of  the  real  estate  freed  and  discharged  from 
the  lien  of  any  mortgage  otherwise  preserved  from  discharge  by 
existing  law,  if  the  holder  of  such  mortgage,  by  writing  filed  in 
said  court,  shall  consent  to  the  sale  being  so  made. 

NOTE. — The  first  part  is  declaratory  of  the  existing  law.  As  to  the  ef- 
fect of  private  sales  for  the  payment  of  debts  in  discharging  liens,  see 
O'Brian  v.  Wiggins,  14  Pa.  Superior  Ct.  37. 


FIDUCIARIES  ACT— SECTIONS  16  (o),   (p)-i?  (a),   (&)        347 

A  public  sale  of  real  estate  under  the  provisions  of  this  act  may  well 
stand  on  the  same  footing  as  a  sheriff's  sale  so  far  as  the  discharge  of 
record  liens  is  concerned;  and  a  private  sale  of  real  estate  for  the  payment 
of  debts  is  by  the  terms  of  this  section  subject  to  equivalent  formalities 
of  procedure. 

The  proviso  is  derived  from  Section  2  of  the  Act  of  May  19,  1893,  P.  L. 
no,  i  Purd.  1185. 

455.  PURCHASER  NOT  BOUND  TO  SEE  TO  APPLI- 

CATION OF  PURCHASE  MONEY. 

(/?)  Whenever  a  public  or  private  sale  of  real  estate  shall  be 
authorized  or  directed  by  any  orphans'  court  under  the  provisions 
of  this  section,  the  person  or  persons  purchasing  the  real  estate  so 
sold  and  taking  title  thereto  in  pursuance  of  the  decree  of  the 
court,  shall  take  such  title  free  and  discharged  of  any  obligation 
to  see  to  the  application  of  the  purchase  money. 

NOTE. — This  is  a  new  section,  modeled  upon  Section  i  of  the  Act  of 
June  10,  1911,  P.  L.  874,  7  Purd.  7703,  which  related  only  to  sales  under 
testamentary  powers,  and  is  the  basis  of  Section  30  of  the  present  draft. 
(See  496  infra.)  The  Act  of  1911  superseded  Section  19  of  the  Act  of 
February  24,  1834,  P.  L.  70,  i  Purd.  1122,  which  provided  for  payment 
of  purchase  money  into  court. 

456.  PROCEEDINGS    TO    RELIEVE    REAL    ESTATE 

FROM  LIEN  OF  DEBTS,— PETITION. 

SECTION  17.  (a)  It  shall  and  may  be  lawful  for  any  executor, 
administrator,  trustee,  or  any  party  interested  in  the  real  estate  of 
any  decedent,  to  present  a  petition  to  any  court  having  jurisdiction 
of  the  settlement  of  such  estate,  setting  forth  all  the  particulars, 
and  also  that  there  are  just  and  reasonable  grounds  for  believing 
that  said  decedent  left  no  debts  not  of  record,  and  that  it  is  de- 
sirable to  have  the  real  estate  of  said  decedent  relieved  from  any 
lien  now  given  by  law  for  such  debts. 

NOTE. — This  is  Section  2  of  the  Act  of  June  8,  1893,  P.  L.  392,  i  Purd. 
1108,  except  that,  in  the  fourth  line,  "a  petition"  is  substituted  for  "his, 
her  or  their  petition." 

457.  HEARING  BY  COURT  OR  MASTER;  NOTICE. 

(&)  Said  court  may  hear  and  determine  the  same,  or  refer  such 
petition  to  a  master,  whose  duty  it  shall  be  to  inquire  diligently 
into  the  facts  and  circumstances  alleged  in  such  petition,  and  report 
the  same  to  said  court.  The  court  may  in  its  discretion  direct  such 


348  FIDUCIARIES  ACT— SECTIONS   17(6),    (c)-i8  (o) 

notices  to  be  given  of  such  application,  by  publication  or  otherwise, 
as  it  may  deem  necessary. 

NOTE. — This  is  Section  3  of  the  Act  of  June  8,  1893,  P.  L.  392,  I  Purd. 
1108,  modified  by  omitting  in  the  first  line,  after  "court,"  the  words 
"having  jurisdiction  as  aforesaid";  by  omitting  in  the  same  line,  after 
"same,"  the  words  "and  shall  have  power"  and  inserting  "or";  by  omitting 
"any"  before  "such  petition"  in  the  fourth  line ;  by  omitting  "said"  before 
"court"  in  the  fifth  line;  and  by  omitting  "either"  after  "application"  in 
the  sixth  line. 

458.  DECREE;   BONDS  BY  PERSONS  ENTITLED  TO 

REAL   ESTATE, 

(c)  It  shall  be  the  duty  of  said  court,  upon  being  fully  satisfied 
as  to  the  truth  and  justice  of  the  matters  alleged  in  any  such  peti- 
tion, to  decree  that  the  real  estate  of  such  decedent  shall  be  held 
and  enjoyed  free  and  clear  of  any  lien  c'  debts  not  of  record  of 
said  decedent,  and  said  court  shall  require  the  person  or  persons 
entitled  to  said  real  estate  to  enter  bond,  in  such  form  and  amount, 
and  with  or  without  sureties,  as  the  court  may  in  its  discretion  de- 
termine, conditioned  for  the  payment  by  such  person  or  persons 
of  an  amount  sufficient  to  pay  any  debts  of  the  decedent  not  of 
record,  which  may  thereafter  be  proved  and  which  would  have 
been  liens  upon  said  real  estate  but  for  such  decree. 

NOTE. — This  is  Section  4  of  the  Act  of  1893,  i  Purd.  1108,  modified  by 
omitting  "and  application"  after  "petition,"  "any"  before  "such  decedent," 
and  "and  direct"  after  "decree,"  and  by  adding  the  provisions  in  regard 
to  bonds.  Section  5  is  a  general  repealer. 

459.  CONTRACTS  OF  DECEDENTS  FOR  SALE  OR 

PURCHASE  OF  REAL  ESTATE,— PETITION 
NOTICE,  HEARING  AND  DECREE  OF  SPE- 
CIFIC PERFORMANCE. 

SECTION  18.  (a)  Where  any  person  shall  have,  by  contract  in 
writing,  agreed  to  sell  and  convey  any  real  estate  in  this  common- 
wealth, and  died  seized  or  possessed  thereof,  or  of  an  undivided 
interest  therein,  or  where  any  person  shall  have  purchased,  in 
writing,  any  real  estate  in  this  commonwealth  and  died  without 
paying  the  purchase  money  therefor,  it  shall  be  lawful  in  all  such 
cases  for  the  executor  or  administrator  of  the  deceased  vendor, 
or  for  the  vendor  when  the  purchaser  may  have  died,  or  for  the 
purchaser  of  such  real  estate,  or,  when  he  has  died,  for  his  executor 
or  administrator,  or  for  any  other  person  interested  in  such  con- 


FIDUCIARIES  ACT— SECTION  18  (a)  349 

tract,  to  petition  the  orphans'  court  having  jurisdiction  of  the  ac- 
counts of  the  executor  or  administrator  of  the  deceased  vendor  or 
the  deceased  purchaser,  as  the  case  may  be,  setting  forth  the  facts 
of  the  case.  After  due  notice  of  such  petition  to  the  persons  in- 
terested, according  to  the  nature  of  the  proceeding,  to  appear  in 
such  court,  on  a  day  certain,  and  answer  the  petition,  such  court 
shall  have  power,  if  the  facts  be  sufficient  in  equity,  no  sufficient 
cause  being  shown  to  the  contrary,  to  decree  specific  performance 
of  such  contract  according  to  the  true  intent  and  meaning  thereof. 

NOTE.— This  is  Section  i  of  the  Act  of  April  28,  1899,  P.  L.  157,  i  Purd. 
743,  with  some  slight  changes  in  phraseology,  and  the  insertion,  in  the 
fourth  line,  of  the  words  "or  of  an  undivided  interest  therein,"  to  cover 
the  provisions  of  Section  i  of  the  Act  of  February  8,  1848,  P.  L,.  27, 
I  Purd.  742. 

Section  i  of  the  Act  of  1899,  which  apparently  supplied  Section  15  of 
the  Act  of  February  24,  1834,  P.  L.  75,  i  Purd.  741,  extended  the  remedy 
to  cases  of  deceased  purchasers  and  allowed  the  petition  to  be  filed  by 
any  person  interested  in  the  contract. 

Sections  15  to  18  of  the  Act  of  1834  were  founded  on  the  Acts  of 
March  31,  1792,  3  Sm.  L.  66;  March  12,  1804,  P.  L.  271;  and  March  10, 
1818,  P.  L.  183,  which  provided  a  remedy  in  the  common  law  courts. 

The  language  of  Section  18  (a)  of  the  Fiduciaries  Act  as  to  persons 
dying  "seized  or  possessed"  of  real  estate,  includes  any  person  who  was 
the  owner  thereof  at  the  time  of  his  death. 

"The  contention  of  complainant's  solicitor  that  this  Act  applies  only 
where  the  deceased  vendor  dies  'possessed'  of  the  real  estate  in  question, 
is  untenable,  for  the  language  of  said  Section  18  (a)  is  'seized  or  pos- 
sessed' and  both  conditions  are  thus  included,  and  it  is  not  questioned 
that  the  testator  died  seized  of  the  real  estate  in  question  at  bar.  To  die 
'seized'  means  to  die  the  'owner  of,'  'seized'  being  equivalent  to  'owning.' 
In  re:  Stevens,  12  N.  E.  759,  (N.  Y.).  The  bill  discloses  the  fact  that 
the  vendor  'owned'  or  was  'seized'  of  the  legal  title  at  his  decease  and  by 
virtue  of  the  contract  the  complainant  of  the  equitable  title.  We  note  in 
passing  that  uniformly  the  vendee  under  articles  is  the  one  in  possession. 

"While  it  would  seem  therefore  that  we  could  rely  solely  upon  the  pro- 
visions of  the  Orphans'  Court  and  Fiduciaries  Acts  just  mentioned,  in 
view  of  the  insistence  of  complainant's  solicitor  contra,  we  will  refer  to 
other  legislation  and  judicial  decisions.  The  case  of  Gable  v.  Whiteside, 
242  Pa.  188,  holds  under  the  Act  of  April  28,  1899,  P.  L,.  157,  which  gave 
jurisdiction  to  the  orphans'  court  to  hear  and  decree  specific  performance 
of  contracts  for  sale  of  real  estate  by  vendor,  deceased,  at  the  time  of  the 
application,  that  the  jurisdiction  of  said  court  is  exclusive,  and  neither  a 
common  law  court  or  a  chancellor  has  jurisdiction  in  such  case  and  re- 
versed such  decree  of  a  chancellor  in  equity  below.  The  language  of  the 
Act  of  1899  and  of  the  eighteenth  section  (a)  of  that  of  1917  is  literally 
the  same  with  the  exception  the  latter  broadens  the  subject  matter  of 
jurisdiction,  and  Gable  v.  Whiteside,  ante,  applies  to  the  case  at  bar. 


350  FIDUCIARIES  ACT— SECTION  18  (a),  (6) 

"Besides  the  mandate  of  the  Statute  of  21  March,  1806  (Purd.  Dig.  271), 
providing  that  a  statutory  remedy  if  existing  must  be  strictly  pursued  re- 
enforces  the  effect  we  must  give  to  the  two  Acts  of  1917  cited  above. 
Should  it  be  contended  that  the  strictness  of  procedure  thus  required  ap- 
plies only  to  the  procedure  once  adopted,  and  not  to  the  remedy  or  juris- 
diction, we  are  relieved  of  doubt  by  the  decision  of  Whitney  v.  Jersey 
Shore,  266  Pa.  537,  which  holds  that  when  a  statutory  remedy  is  provided 
whereby  a  legal  right  may  be  effectually  settled,  it  is  necessary  to  pursue 
the  remedy  and  thus  establish  the  right,  and  is  peculiarly  appropriate  au- 
thority here  from  the  fact  that  in  both  that  case  and  at  bar  an  injunction 
is  prayed  for,  and  it  is  apparent  that  relief  in  equity  or  otherwise  by  in- 
junction proceedings  is  not  necessary  for  any  purpose  because  of  the  re- 
quirements of  (c)  of  the  eighteenth  section  of  the  Fiduciaries  Act  (P.  L. 
487,  of  1917)  of  the  filing  and  indexing  as  Us  pendens  a  certificate  from 
the  clerk  of  the  orphans'  court  of  the  filing  in  the  latter  court  the  petition 
for  specific  performance. 

"  *  *  *  By  the  jurisdiction  of  and  proceedings  in  the  orphans'  court 
under  the  Orphans'  Court  and  Fiduciaries  Acts  of  1917  cited  above,  all 
contraverted  questions  raised  by  the  bill  at  bar  are  judiciable.  Therefore, 
the  adequate  remedy  thus  exists  and  its  legislative  exclusiveness  of  resort 
precludes  any  other  because  of  any  claimed  greater  convenience."  SMITH, 
P.  J.,  in  Wykoff  v.  Manzer,  2*  Lack.  308. 

460.     REMEDY  IN  ORPHANS'  COURT  EXCLUSIVE. 

(&)  The  aforesaid  remedy,  by  petition  to  the  orphans'  court, 
shall  hereafter  be  exclusive. 

NOTE. — This  is  a  new  provision,  declaratory  of  the  existing  law. 

There  was  some  conflict  in  the  early  opinions,  and  in  Mussleman's  Ap- 
peal, 65  Pa.  480,  it  was  remarked  by  Mr.  Justice  AGNEW  that  it  was  per- 
haps unfortunate  that  the  Supreme  Court,  in  Wetherill  v.  Seitzinger,  9 
W.  &  S.  177,  and  in  an  unreported  case,  had  decided  that  the  Act  of  1834 
did  not  oust  the  jurisdiction  of  the  common  pleas  under  the  Act  of  1792. 

The  Commissioners  of  1830  reported:  "We  have  transferred  the  juris- 
diction and  power  of  giving  relief  in  all  cases  within  the  act,  from  the 
common  pleas  to  the  orphans'  court.  The  constitution  and  process  of  the 
latter  tribunal  seem  to  us  peculiarly  to  fit  it  for  all  questions  of  chancery 
jurisdiction,  and  particularly  for  cases  like  that  provided  for  in  these 
sections,  where  various  parties  may  be  interested  and  various  inquiries 
may  be  necessary,  for  the  best  prosecution  of  which,  the  powers  of  the 
common  law  courts  are  entirely  inadequate.  The  course  of  proceedings 
suggested  is  believed  to  have  the  advantage  of  greater  simplicity,  and  at 
the  same  time  of  greater  efficacy  than  that  at  present  authorized." 

This  was  a  clear  indication  that  the  Commissioners  of  1830  were  of 
opinion  that  the  earlier  acts  should  be  repealed. 

The  matter  is  now  set  at  rest  by  the  decision  of  the  Supreme  Court,  in 
Gable  v.  Whiteside,  242  Pa.  188,  that  the  jurisdiction  of  the  orphans'  court 
is  exclusive.  The  present  commissioners,  therefore,  recommend  that  the 


FIDUCIARIES  ACT— SECTION  18  (fc)  351 

acts  giving  jurisdiction  to  the  court  of  common  please  be  expressly  re- 
pealed. 

The  acts  in  question  are  as  follows:  March  31,  1792,  3  Sm.  L.  66,  Sec- 
tions 1-3,  I  Purd.  738,  739;  March  12,  1804,  (4  Sm.  L.  158)  P.  L.  271. 
Section  I,  I  Purd.  739;  March  10,  1818  (7  Sm.  L.  79),  P.  L.  183,  Sections 
1-3,  I  Purd.  740,  741;  February  5,  1821  (7  Sm.  L.  357),  P.  L.  25,  Section 
2,  i  Purd.  739;  and  April  3,  1851,  P.  L.  305,  Section  6,  I  Purd.  741. 

A  court  of  equity  has  no  jurisdiction  to  enforce  specific  performance 
of  a  contract  made  by  a  decedent  for  the  sale  of  land  of  which  he  died 
seized. 

Jurisdiction  in  such  a  case  is  vested  in  the  orphans'  court  by  Section 
9  (i)  of  the  Orphans'  Court  Act  of  June  7,  1917,  P.  L.  372;  and  Section 
18  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  486,  providing  the  mode 
of  procedure  by  petition  to  the  orphans'  court,  also  makes  that  remedy 
exclusive. 

The  orphans'  court  formerly  had  the  same  exclusive  jurisdiction  under 
the  Act  of  April  28,  1899,  P.  L.  157. 

The  adequate  remedy  provided  by  the  Orphans'  Court  Act  and  the 
Fiduciaries  Act  of  1917,  and  its  legislative  exclusiveness  of  resort,  pre- 
cludes any  other  remedy  sought  on  the  ground  of  greater  convenience. 

The  language  of  Section  18  (a)  of  the  Fiduciaries  Act  as  to  persons 
dying  "seized  or  possessed"  of  real  estate,  includes  any  person  who  was 
the  owner  thereof  at  the  time  of  his  death. 

"Passing  to  the  demurrer  itself,  we  note  that  by  Section  9  (i)  of  the 
Orphans'  Court  Act  of  June  7,  1917,  P.  L,.  372,  jurisdiction  of  that 
court  is  given  to  'embrace' — 

"The  contention  of  complainant's  solicitor  that  this  act  applies  only 
convey  any  real  estate  of  which  such  decedents  shall  die  seized,'  and  the 
proceedings  therefor  by  petition  to  said  court  by  the  Fiduciaries  Act  of 
1917,  Section  18  (a)  P.  L.  486,  'such  court  shall  have  power  if  the  facts 
be  sufficient  in  equity,  no  sufficient  cause  being  shown  to  the  contrary,  to 
decree  specific  performance  of  such  contract  according  to  the  true  intent 
and  meaning  thereof.' 

"By  the  same  section  (b)  (P.  L.  487)  it  is  provided  that  'the  aforesaid 
remedy  by  petition  to  the  orphans'  court  shall  hereafter  be  exclusive.' 

"The  contention  of  complainant's  solicitor  that  this  act  applies  only 
where  the  deceased  vendor  dies  'possessed'  of  the  real  estate  in  question, 
is  untenable,  for  the  language  of  said  Section  18  (a)  is  'seized  or  pos- 
sessed' and  both  conditions  are  thus  included,  and  it  is  not  questioned  that 
the  testator  died  seized  of  the  real  estate  in  question  at  bar.  To  die 
'seized'  means  to  die  the  'owner  of,'  'seized'  being  equivalent  to  'owning.' 
In  re  Stevens  12  N.  E.  759  (N.  Y.)  the  bill  discloses  the  fact  that  the 
vendor  'owned'  or  was  'seized'  of  the  legal  title  at  his  decease  and  by 
virtue  of  the  contract  the  complainant  of  the  equitable  title.  We  note  in 
passing  that  uniformly  the  vendee  under  articles  is  the  one  in  possession. 

"While  it  would  seem  therefore  that  we  could  rely  solely  upon  the 
provisions  of  the  Orphans'  Court  and  Fiduciaries  Acts  just  mentioned,  in 
view  of  the  insistence  of  complainant's  solicitor  contra,  we  will  refer 


352  FIDUCIARIES  ACT— SECTION  18  (&),  (c)   . 

to  other  legislation  and  judicial  decisions.  The  case  of  Gable  v.  White- 
side,  242  Pa.  188,  holds  under  the  Act  of  April  28,  1899,  P.  L.  157,  which 
gave  jurisdiction  to  the  orphans'  court  to  hear  and  decree  specific  per- 
formance of  contracts  for  sale  of  real  estate  by  vendor,  deceased,  at 
the  time  of  the  application,  that  the  jurisdiction  of  said  court  is  exclusive, 
and  neither  a  common  law  court  or  a  chancellor  has  jurisdiction  in  such 
case  and  reversed  such  decree  of  a  chancellor  in  equity  below. 

"The  language  of  the  Act  of  1899  and  of  the  i8th  Section  (a)  of  that  of 
1917  is  literally  the  same  with  the  exception  the  latter  broadens  the  sub- 
ject matter  of  jurisdiction  and  Gable  v.  Whiteside  ante  applies  to  the 
case  at  bar. 

"Besides  the  mandate  of  the  statute  of  21  March,  1806  (Purd.  Dig.  271), 
providing  that  a  statutory  remedy  if  existing  must  be  strictly  pursued 
reenforces  the  effect  we  must  give  to  the  two  Acts  of  1917  cited  above. 
Should  it  be  contended  that  the  strictness  of  procedure  thus  required 
applies  only  to  the  procedure  once  adopted,  and  not  to  the  remedy  or 
jurisdiction,  we  are  relieved  of  doubt  by  the  decision  of  Whitney  v. 
Jersey  Shore,  266  Pa.  537,  which  holds  that  when  a  statutory  remedy  is 
provided  whereby  a  legal  right  may  be  effectually  settled,  it  is  necessary 
to  pursue  the  remedy  and  thus  establish  the  right,  and  is  peculiarly  appro- 
priate authority  here  from  the  fact  that  in  both  that  case  and  at  bar  an  in- 
junction is  prayed  for,  and  it  is  not  necessary  for  any  purpose  because  of 
the  requirements  of  (c)  of  the  i8th  Section  of  the  Fiduciaries  Act  of 
the  filing  and  indexing  as  lis  pendens  a  certificate  from  the  clerk  of  the 
orphans'  court  of  the  filing  in  the  latter  court  the  petition  for  specific 
performance.  *  *  * 

"By  the  jurisdiction  of  and  proceedings  in  the  orphans'  court  under 
the  Orphans'  Court  and  Fiduciaries  Acts  of  1917  cited  above,  all  contro- 
verted questions  raised  by  the  bill  at  bar  are  judiciable.  Therefore,  the 
adequate  remedy  thus  exists  and  its  legislative  exclusiveness  of  resort 
precludes  any  other  because  of  any  claimed  greater  convenience."  SMITH, 
P.  J.,  in  Wykoff  v.  Manzer,  22  Lack.  308. 

461.    INDEXING  OF   PETITION  IN   JUDGMENT  IN- 
DEX. 

(c)  When  any  petition  for  the  specific  performance  of  any  such 
contract  shall  have  been  filed,  it  shall  be  the  duty  of  the  prothono- 
tary  of  the  court  of  common  pleas  of  the  county  in  which  such 
real  estate  or  any  part  thereof  shall  lie,  on  being  certified  by  the 
clerk  of  the  orphans'  court  in  which  such  petition  shall  have  been 
filed  of  the  fact  of  such  filing,  to  enter  the  same  upon  the  judgment 
index  under  the  name  of  the  respondent  in  such  petition,  and  to 
certify  the  same  as  lis  pendens  in  any  certificate  of  search  that  he 
may  be  required  to  make  by  virtue  of  his  office. 

NOTE. — This  is  a  new  provision,  modeled  upon  Section  i  of  the  Act  of 
June  15,  1871,  P.  L.  387,  4  Purd.  4060.  See  also  the  Act  of  April  22,  1856, 
P.  L.  532,  Section  2,  2  Purd.  1303. 


FIDUCIARIES  ACT— SECTION  18  (c),  (rf)  353 

This  provision  seems  preferable  to  that  of  Section  2  of  the  Act  of  April 
28,  1899,  P.  L.  157,  i  Purd.  743,  which  was  a  copy  of  Section  17  of  the 
Act  of  1834,  I  Purd.  742,  and  reads  as  follows:  "The  order  or  decree  of 
the  orphans'  court  for  the  specific  performance  of  any  such  contract,  in 
the  cases  hereinbefore  mentioned,  being  certified  by  the  clerk  of  such 
court,  under  the  seal  thereof,  may  be  recorded  in  the  office  for  the  record- 
ing of  deeds  in  the  county  where  such  real  estate  is  situate,  in  like  man- 
ner as  deeds  are  recorded,  and  with  the  same  effect." 

It  is  recommended  that  this  section  be  repealed,  since,  if  the  decree  is 
followed  by  a  deed,  which  will  itself  be  recorded,  the  recording  of  the 
decree  seems  unnecessary.  The  indexing  of  the  petition,  as  provided  by 
clause,  (c),  supra,  will  be  more  satisfactory. 

See  Wykoff  v.  Manzer,  22  Lack.  308. 

462.  EXECUTION  AND  EFFECT  OF  DEED;  DECREE 
FOR  PAYMENT  BY  REPRESENTATIVES  OF 
DECEASED  VENDEE. 

(rf)  When  such  order  or  decree  for  the  specific  performance 
of  any  such  contract  shall  have  been  made,  and  the  purchase  money 
paid  or  secured  to  be  paid  according  to  the  terms  of  such  contract, 
it  shall  be  the  duty  of  the  vendor,  or,  when  he  shall  be  deceased, 
of  his  executors  or  administrators,  to  execute  such  deed  of  convey- 
ance as  shall  be  directed  by  the  court  in  conformity  with  the  in- 
tention of  such  contract.  Such  deed,  being  so  made  by  such  execu- 
tors or  administrators,  shall  have  the  same  force  and  effect  to  pass 
and  vest  the  estate  intended  as  if  the  same  had  been  executed  by 
the  decedent  in  his  lifetime.  In  the  case  of  an  order  or  decree  for 
specific  performance  by  the  executors  or  administrators  of  a  de- 
ceased vendee,  the  court  shall  enter  a  decree  for  payment  by  such 
executors  or  administrators,  out  of  the  estate  of  their  decedent,  of 
the  amount  of  purchase  money,  with  interest,  if  any,  which  decree 
may  be  enforced  in  like  manner  as  other  decrees  of  the  orphans' 
court  for  the  payment  of  money.  The  liability  for  the  costs  of 
such  proceedings  shall  be  in  the  discretion  of  the  court. 

NOTE. — This  is  Section  3  of  the  Act  of  April  28,  1899,  i  Purd.  743, 
which  was  a  copy  of  Section  18  of  the  Act  of  1834,  i  Purd.  742,  except 
for  the  insertion  of  the  provision  for  conveyance  by  the  vendor  himself, 
intended  to  cover  the  case  of  a  deceased  vendee. 

The  third  sentence  has  now  been  added  to  cover  the  case  where  the 
decree  of  the  court  is  for  payment  of  purchase  money  by  the  estate  of  a 
deceased  vendee.  The  provision  as  to  costs  is  also  new. 

23 


354  FIDUCIARIES  ACT— SECTION  18  (*),  (/) 

463.  ENFORCEMENT  OF  PAROL  CONTRACTS. 

(e)  Like  proceedings  may  be  had  in  all  respects  wherever  any 
parol  contract  shall  have  been  entered  into  by  any  person  for  the 
conveyance  of  real  estate  within  this  commonwealth  and  the  pur- 
chaser shall  have  died  without  fully  executing  such  contract,  or 
wherever  any  person  may  have  made  such  parol  agreement  and 
died  seized  or  possessed  of  such  real  estate  and  no  sufficient  pro- 
vision for  the  performance  of  such  contract  shall  have  been  made 
by  the  decedent,  in  all  cases  where  such  parol  contract  shall  have 
been,  so  far  executed  that  it  would  be  against  equity  to  rescind  the 
same. 

NOTE. — This  is  Section  4  of  the  Act  of  April  28,  1899,  i  Purd.  743,  ex- 
cept that  the  latter  part,  beginning  "and  no  sufficient  provision,"  follows 
the  phraseology  of  Section  16  of  the  Act  of  1834,  i  Purd.  742,  from  which 
Section  4  of  the  Act  of  1899  was  derived. 

The  Act  of  1899  reads,  "and  such  parol  contract  may  have  been  so  far 
executed  by  possession,  by  improvement,  or  by  partial  payment  of  purchase 
money,  that  it  would  be  against  equity  to  rescind  the  same." 

The  commissioners  are  of  opinion  that  it  is  better  to  use  the  general 
language  of  the  Act  of  1834  rather  than  to  attempt  to  define  in  this  act 
the  part  performance  which  is  sufficient  to  take  a  parol  contract  for  the 
sale  of  land  out  of  the  Statute  of  Frauds. 

464.  EXECUTION  OF  DEED  WHERE  GRANTEE  IS 

EXECUTOR  OR  ADMINISTRATOR. 

(/)  In  all  cases  of  specific  performance  of  contract  which  may 
hereafter  be  decreed  by  any  orphans'  court  under  the  provisions 
of  this  section,  where  the  party  to  whom  the  deed  is  to  be  made  is 
an  executor  or  administrator  of  the  deceased  vendor,  the  deed  shall 
be  made,  as  in  other  cases,  by  the  co-executor  or  co-administrator, 
if  there  be  one ;  and  if  there  be  none,  the  court  may  make  an  order 
directing  its  clerk  to  execute  such  deed  and  deliver  the  same  to 
the  grantee  therein  named,  upon  such  terms  as  the  court  shall  see 
fit  to  require  from  the  grantee,  as  executor  or  administrator  of  the 
decedent,  for  securing  the  faithful  appropriation  of  the  unpaid 
purchase  money. 

NOTE. — This  is  Section  2  of  the  Act  of  April  9,  1849,  P.  L.  511,  I  Purd. 
742,  changed  by  referring  to  "the  provisions  of  this  section"  instead  of 
Sections  15,  16  and  17  of  the  Act  of  1834,  and  by  providing  that  the  deed 
shall  be  executed  by  the  clerk  of  the  orphans'  court  instead  of  by  the 
sheriff. 


FIDUCIARIES  ACT— SECTIONS  19-20-21  355 

465.  NOTICE  OF  DEVISE  OR  BEQUEST  TO  CORPO- 

RATION. 

SECTION  19.  Whenever  a  devise  or  bequest  shall  be  made  to  any 
corporate  body,  by  any  last  will  and  testament,  the  executors 
thereof  shall,  within  three  months  after  they  undertake  the  execu- 
tion of  such  will,  make  known,  by  letter  addressed  to  such  corpo- 
rate body,  the  nature  and  amount  of  such  devise  and  bequest,  to- 
gether with  their  names  and  places  of  residence. 

NOTE. — This  is  Section  66  of  the  Act  of  1834,  i  Purd.  noo.  changing 
"six  months"  to  "three  months,"  and  omitting  "public"  before  "corporate 
body."  The  main  object  of  the  section  is  notice  to  charitable  corporations, 
and  "public"  might  seem  to  restrict  it  to  municipalities. 

The  section  was  copied  from  Section  5  of  the  Act  of  April  6,  1791, 
3  Sm.  L.  20,  which,  however,  imposed  the  duty  of  giving  notice  upon  the 
register  of  wills.  It  is  to  be  noted  that  Section  5  of  the  Act  of  1791  is 
printed  in  4  Purd.  4079  and  in  3  P.  &  L.  6455,  6456,  as  still  in  force.  It 
was  evidently  intended  to  be  repealed  by  the  Act  of  1834,  and  should  now 
be  expressly  repealed. 

466.  ABATEMENT  OF  LEGACIES. 

SECTION  20.  If,  after  deducting  the  amount  of  debts  of  the  tes- 
tator and  the  expenses  of  administration,  the  residue  shall  not  be 
sufficient  to  discharge  all  the  pecuniary  legacies  bequeathed,  an 
abatement  shall  be  made,  in  proportion  to  the  legacies  so  given, 
unless  it  shall  be  otherwise  provided  by  the  will. 

NOTE. — This  is  Section  48  of  the  Act  of  February  24,  1834,  I  Purd.  1132, 
which  was  derived  from  the  last  clause  of  Section  i  of  the  Act  of  March 
21,  1772,  i  Sm.  L.  383. 

It  is  now  modified  by  inserting  after  "debts"  the  words  "of  the  testator 
and  the  expenses  of  administration,"  instead  of  the  words  "as  aforesaid," 
which  referred  to  Section  47  of  the  Act  of  1834. 

467.  WHEN  LEGACIES  SHALL  BE  PAYABLE;    IN- 

TEREST ON  LEGACIES. 

SECTION  21.  Legacies,  if  no  time  be  limited  by  the  will  for  the 
payment  thereof,  shall,  in  all  cases,  be  deemed  to  be  due  and  pay- 
able at  the  expiration  of  six  months  from  the  death  of  the  testator. 
Interest  on  all  pecuniary  legacies,  whether  bequeathed  directly  or 
in  trust,  shall,  unless  a  contrary  intention  appear  by  the  will,  begin 
to  run  from  the  expiration  of  one  year  from  the  death  of  the  tes- 
tator, except  that  if  the  account  of  the  executor  be  filed  and  con- 
firmed and  distribution  awarded  before  the  end  of  such  year,  then 
interest  on  such  legacies  shall  run  from  the  date  of  the  award: 


356  FIDUCIARIES  ACT— SECTION  21 

Provided,  That  where  a  pecuniary  legacy  is  bequeathed  to  or  for 
the  use  of  the  widow  of  the  testator  or  any  child  or  descendant  of 
the  testator,  or  any  person  toward  whom  the  testator  in  his  life- 
time stood  in  loco  parentis,  or  for  the  maintenance  of  any  person, 
interest  shall,  unless  a  contrary  intention  appear  by  the  will,  begin 
to  run  from  the  date  of  the  death  of  the  testator. 

NOTE. — The  first  four  lines  of  this  section,  down  to  the  word  "testator," 
are  copied  from  Section  51  of  the  Act  of  1834,  i  Purd.  1134,  which  was 
derived  from  Section  7  of  the  Act  of  March  21,  1772,  i  Sm.  L.  383.  The 
only  change  is  to  substitute  "six  months"  for  one  year.  The  remainder 
of  the  section  is  new. 

In  this  section,  legacies  are  made  payable  at  the  end  of  six  months,  for 
the  reason  that  in  other  sections  of  this  act  the  commissioners  have  rec- 
ommended that  executors  and  administrators  should  file  their  accounts  at 
the  expiration  of  this  period  after  the  issuance  of  letters.  It  is,  however, 
recommended  that  interest  should  not  begin  to  run  on  legacies  until  after 
the  expiration  of  one  year  or  an  earlier  award;  as  in  future  most  accounts 
will  be  filed  at  the  end  of  six  months  from  the  grant  of  letters,  the  award 
of  legacies  will  not  be  complicated  by  the  calculation  of  interest. 

Interest  on  legacies  to  or  for  the  use  of  a  widow  or  children  or  those 
to  whom  the  testator  stood  in  loco  parentis,  and  legacies  for  maintenance, 
will,  unless  it  be  otherwise  provided,  run  from  the  death  of  the  testator; 
but  legacies  bequeathed  in  trust  for  other  persons  will  not  carry  interest 
from  the  date  of  death,  the  commissioners  having  here  adopted  the  views 
of  Judge  PENROSE  in  Twell's  Estate,  n  D.  R.  713. 

Under  this  section  of  the  Fiduciaries  Act,  where  a  pecuniary  legacy  is 
bequeathed  to  or  for  the  use  of  the  widow  of  the  testator,  the  interest, 
unless  a  contrary  intention  appear  by  the  will,  begins  to  run  from  the 
date  of  the  death  of  the  testator.  A  direction  in  a  will  to  set  aside  a  fund 
for  the  widow's  use  "as  soon  as  possible  after  my  death,"  does  not  denote 
a  contrary  intention  on  the  part  of  the  testator.  Wagner's  Est.,  13  Berks  6, 
30  Dist.  435. 

"It  was  argued  on  behalf  of  Florence  Hadfield  that  the  testator  in- 
tended the  bequest  of  $25,000  to  be  preferred  to  the  other  legacies,  because 
the  testator  directed  that  it  be  paid  'immediately.'  The  auditing  judge  can- 
not agree  with  this  argument.  Manifestly,  the  intention  of  the  testator  was 
to  specify  merely  the  time  when  the  legacy  was  to  be  paid,  not  to  give  it 
priority  over  others  in  case  of  a  deficiency  of  assets  to  pay  all  in  full.  Mur- 
doch's Appeal,  31  Pa.  47,  was  virtually  a  contest  between  the  annuitants 
and  the  residuary  legatees,  and  was  decided  on  that  ground.  The  onus 
is  always  on  the  legatee  who  claims  a  priority  of  payment,  Bard's  Estate, 
58  Pa.  393,  and  a  mere  provision  that  the  legacy  is  due  immediately  in- 
stead of  at  the  expiration  of  a  year  is  not  sufficient  proof  of  such  intention. 
The  same  remark  applies  also  to  the  widow's  legacy  of  $25,000,  also  di- 
rected to  be  paid  immediately.  But  under  the  Fiduciaries  Act  of  1917, 
Section  21,  the  legacies  to  the  widow  and  to  Florence  Hadfield  are  entitled 
to  interest  from  the  date  of  death,  because  they  are  due  immediately,  and 


FIDUCIARIES  ACT— SECTIONS  21-22  357 

besides,  in  the  case  of  the  widow,  she  is  entitled  to  interest  by  the  express 
provision  of  that  section  of  the  Fiduciaries  Act."  Per  GEST,  J.,  in  Greaves' 
Est.,  29  Dist.  577. 

Under  this  section  of  the  Fiduciaries  Act,  interest  begins  to  run  on  a 
legacy  bequeathed  in  trust  (with  certain  exceptions  mentioned  in  the  sec- 
tion) only  from  the  expiration  of  one  year  from  the  testator's  death;  the 
act  in  this  respect  changed  the  existing  law. 

ANDERSON,  J.,  for  the  court  in  bane,  held :  "We  agree  with  the  auditing 
judge  in  this  case  that,  under  the  law  as  it  now  stands,  interest  does  not 
run  on  this  trust  legacy  until  either  the  end  of  the  year  or  the  time  of  the 
adjudication.  And  while  it  is  clearly  shown  by  the  argument  of  except- 
ant's  counsel  that,  prior  to  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447, 
interest  would  be  allowed  in  such  a  case  as  this,  yet  it  must  be  borne  in 
mind  that  at  the  drafting  of  this  act  the  commissioners,  with  the  knowl- 
edge that  trust  legacies  carried  interest  from  the  date  of  the  death,  while 
pecuniary  legacies  did  not,  so  changed  the  law  as  to  make  trust  legacies, 
except  under  certain  conditions,  which  do  not  exist  in  this  case,  bear  in- 
terest, as  above  stated,  not  until  the  end  of  the  year  or  the  filing  of  the 
adjudication.  The  change  was  made  deliberately,  and  we  are  bound  by 
the  law  as  it  now  exists."  Sterrett's  Est.,  29  Dist.  147. 

468.    APPORTIONMENT  OF  INCOME. 

SECTION  22.  All  annuities  and  all  payments  of  rents,  income, 
interest  or  dividends  of  any  real  or  personal  property,  directed  by 
any  will  to  be  made  during  the  lifetime  of  the  beneficiary,  or  for 
the  life  or  lives  of  another  person  or  persons,  or  for  a  term  of 
years,  shall,  like  interest  on  money  lent,  be  considered  as  accruing 
from  day  to  day,  and  shall  be  apportioned  to  the  date  of  the  death 
of  such  beneficiary  or  of  such  cestui  que  vie,  or  to  the  end  of  such 
term  of  years. 

NOTE. — This  is  a  new  section,  modeled  to  some  extent  on  the  English 
Apportionment  Act  of  33  and  34  Victoria,  Chapter  35.  Under  the  existing 
law,  income  is  apportionable  in  some  instances  and  not  in  others.  See 
the  cases  cited  in  n  P.  &  L.  Dig.  of  Decisions,  col.  18690;  Macllwain's 
Estate,  20  D.  R.  1073. 

It  is  to  be  noted  that  Sections  7  and  30  of  the  Act  of  February  24,  1834 
(Sections  n  (<?)  (see  396  supra)  and  35  (e)  (see  516  infra)  of  the  pres- 
ent draft),  were  derived  from  the  statute  of  II  George  II,  Chapter  19, 
which  was  the  first  of  a  series  of  statutes  in  England,  culminating  in  the 
above  cited  statute  of  Victoria,  which  provides  that  "all  rents,  annuities, 
dividends,  and  other  periodical  payments  in  the  nature  of  income  (whether 
reserved  or  made  payable  under  an  instrument  in  writing  or  otherwise) 
shall,  like  interest  on  money  lent,  be  considered  as  accruing  from  day  to 
day,  and  shall  be  apportionable  in  respect  of  time  accordingly." 

The  change  now  recommended  by  the  commissioners  was  suggested  by 
THAYER,  P.  J.,  in  Stewart  v.  Swaim,  7  W.  N.  C.  407. 


358  FIDUCIARIES  ACT— SECTION  23 

469.  SECURITY  BY  ONE  ENTITLED  TO  INCOME  OR 
PROCEEDS  OF  SALE  OF  DECEDENT'S  REAL 
ESTATE;  AND  BY  LEGATEE  FOR  LIFE,  FOR 
TERM  OF  YEARS,  OR  OTHER  LIMITED  PE- 
RIOD OR  ON  CONDITION  OR  CONTINGENCY; 
APPOINTMENT  OF  TRUSTEE  ON  REFUSAL, 
NEGLECT  OR  INABILITY  TO  ENTER  SE- 
CURITY. 

SECTION  23.  Whenever  any  person  is  or  shall  be  entitled  to  the 
income  from  the  proceeds  of  the  sale  of  a  decedent's  real  estate, 
and  whenever  any  personal  property,  or  the  increase,  profits  or 
dividends  thereof,  has  been  or  shall  hereafter  be  bequeathed  to 
any  person,  for  life,  or  for  a  term  of  years,  or  for  any  other  lim- 
ited period,  or  upon  a  condition  or  contingency,  the  executor  or 
executors,  administrator  with  the  will  annexed,  trustee  or  trus- 
tees under  such  will,  or  trustee  appointed  by  the  orphans'  court 
to  make  such  sale  of  real  estate,  as  the  case  may  be,  shall  deliver 
the  property  so  bequeathed  to  the  person  entitled  thereto,  upon 
such  person  giving  security  in  the  orphans'  court  having  jurisdic- 
tion, in  such  form  and  amount  as,  in  the  judgment  of  the  court, 
will  sufficiently  secure  the  interest  of  the  person  or  persons  en- 
titled in  remainder,  whenever  the  same  shall  accrue  or  vest  in  pos- 
session. Should  such  person  or  legatee  refuse  or  neglect  or  be 
unable  to  enter  such  security,  the  court  may,  upon  petition  of  any 
person  interested,  including  the  owner  of  any  subsequent  interest, 
vested  or  contingent,  in  such  proceeds  of  real  estate,  personal 
property,  or  the  increase,  profits  or  dividends  thereof,  and  upon 
due  notice  to  all  persons  interested,  so  far  as  such  notice  can  rea- 
sonably be  given,  appoint  a  suitable  person  or  corporation  as 
trustee  to  receive  and  hold  such  proceeds  of  sale  or  personal  prop- 
erty, invest  the  same  in  securities  authorized  by  law,  pay  the  in- 
come thereof,  after  deducting  all  legal  charges,  to  the  person  en- 
titled thereto,  and,  upon  the  termination  of  the  trust,  account  for 
and  pay  to  the  persons  entitled  thereto  the  corpus  of  the  trust 
fund,  or  transfer  and  deliver  to  them  the  securities  in  which  it  is 
invested,  as  the  court  may  direct,  after  deducting  all  legal  charges 
thereon.  Such  trustee  shall  enter  such  security  as  the  court  may 
direct.  He  shall  not  be  an  insurer  of  the  trust  fund,  and  shall  be 
liable  to  the  persons  interested  in  the  income  or  corpus  of  the  trust 
fund  only  for  such  care,  prudence  and  diligence  in  the  execution 
of  the  trust  as  other  trustees  are  liable  for. 


FIDUCIARIES  ACT— SECTION  23  359 

NOTE. — This  is  Section  i  of  the  Act  of  May  17,  1871,  P.  L,.  269,  i  Purd. 
1133,  amended  by  reason  of  the  decision  in  Weir's  Estate,  251  Pa.  499, 
also  by  inserting  the  provisions  as  to  proceeds  of  real  estate,  and  by 
omitting,  at  the  end  of  the  first  sentence,  the  following:  "and  any  married 
woman  availing  herself  of  the  benefits  of  this  act,  shall  have  power,  as  a 
feme  sole,  to  bind  her  separate  estate  and  property  by  any  obligation  given 
by  her,  as  security  under  this  act."  This  provision  seems  unnecessary  since 
the  Married  Women's  Acts  of  1887  and  1893,  as  it  cannot  be  taken  to 
mean  that  a  married  woman  may  bind  herself  as  surety  for  another,  but 
only  that  she  may  be  principal  in  a  bond  given  under  the  Act  of  1871. 

That  part  of  Section  46  of  the  Act  of  February  24,  1834,  i  Purd.  1123, 
relating  to  security  by  a  tenant  for  life  on  a  sale  of  real  estate  for  pay- 
ment of  debts,  is  covered. 

Section  49  of  the  Act  of  1834,  i  Purd.  1133,  was  supplied  by  the  Act  of 
1871  and  is  recommended  for  repeal. 

Section  i  of  the  Act  of  April  17,  1869,  P.  L.  70,  I  Purd.  1138,  so  far  as 
it  empowers  "the  owner  of  any  contingent  interest  in  the  personal  prop- 
erty of  any  decedent"  to  "require  the  legatee  of  any  previous  interest  in 
the  same  property  before  receiving  the  same,  to  give  security,"  etc.,  is 
embodied  in  the  present  draft. 

The  present  law  seems  to  require  amendment  in  several  particulars.  It 
makes  no  provision  for  the  case  that  frequently  arises  where  the  life  ten- 
ant refuses  or  is  unable  to  enter  security;  nor  does  it  provide  for  the  case 
that  also  frequently  arises  under  existing  laws  where  a  widow,  for  ex- 
ample, is  entitled  for  life  to  her  share  of  the  proceeds  of  real  estate.  In 
such  cases  it  has  been  the  practice  for  the  courts  ex  necessitate  to  appoint 
a  trustee  without  express  legislative  warrant.  The  duties  of  such  a 
trustee  were  of  course  not  defined  by  statute;  and  the  Supreme  Court  has 
recently  held  in  Weir's  Estate,  251  Pa.  499,  that  such  a  trustee  practically 
takes  the  place  of  the  life  tenant,  who  or  whose  estate  under  existing 
decisions  is  responsible  to  the  remaindermen  at  the  termination  of  the 
life  estate  for  the  exact  value  of  the  assets  received  by  the  life  tenant, 
who  thus  becomes  practically  an  insurer  of  the  fund.  In  such  circum- 
stances it  will  be  difficult  to  find  any  person  or  corporation  who  would  be 
willing  to  assume  this  responsibility,  and  this  section  has  been  framed  to 
assimilate  the  duties  and  responsibilities  of  such  a  trustee  to  those  of 
other  trustees. 

"Section  23  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  489,  has 
changed  the  rule  laid  down  in  Weir's  Estate  and  expressly  provides  that, 
where  a  life  tenant  refuses  or  neglects  to  enter  security,  the  court,  upon 
the  application  of  any  person  in  interest,  may  appoint  a  trustee  to  hold  the 
property,  who  shall  be  liable  only  'for  such  care,  prudence  and  diligence 
in  the  execution  of  the  trust  as  other  trustees  are  liable  for'":  Mr.  Jus- 
tice MOSCHZISKER,  in  Loewer's  Est,  263  Pa.  517,  106  Atl.  789,  reversing  on 
another  point  the  court  below  (27  Dist.  753)  where,  in  his  opinion, 
L,AMOREU,E,  P.  J.,  said:  "If,  when  a  life  tenant  gives  a  bond,  the  security 
takes  the  place  of  the  fund  so  awarded,  and  if,  even  where  the  life  estate 


36o  FIDUCIARIES  ACT— SECTION  23 

is  given  in  trust  a  similar  rule  applies,  why  should  not  a  trustee  appointed 
by  the  court  be  treated  as  is  the  surety,  and  be  responsible  for  the  fund 
at  its  value  when  received,  irrespective  of  after-profits  or  losses?  There 
is  no  warrant  in  law  for  the  appointment  of  a  trustee  who  is  to  be  treated 
solely  qua  trustee.  The  Act  of  May  17,  1871,  P.  L.  269,  is  silent  on  the 
subject.  True,  it  has  been  customary,  where  a  life  tenant  was  unwilling 
or  unable  to  comply  with  the  exaction  of  the  act,  to  appoint  some  one  to 
hold  the  fund  and  to  act  as  trustee,  but  prior  to  the  Fiduciaries  Act  of 
1917,  P.  L.  447,  there  was  no  law  authorizing  the  practice.  .  .  . 

"While  no  one  seems  to  have  questioned  the  right  of  the  court  to  ap- 
point such  trustee,  the  responsibilities  and  the  limitations  of  one  so  ap- 
pointed were  questioned  and  are  defined  in  Weir's  Estate,  251  Pa.  499." 
See  also  Conner's  Est.,  29  Dist.  636. 

A  gift  of  $15,000  with  a  limitation  or  restriction  as  to  its  use,  and  a 
further  bequest  on  the  death  of  the  legatee,  comes  within  Section  23  of 
the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  and  will  be  delivered  to 
the  legatee  upon  giving  security  to  protect  the  interest  of  the  remainder- 
men. Dale's  Est.,  29  Dist.  265. 

Where  a  testator  devised  a  farm  to  his  daughter  for  life  subject  to  an 
annual  payment  to  his  widow  during  her  life,  and  the  farm  was  subse- 
quently sold  under  order  of  court  to  pay  a  mortgage  given  for  payment 
of  debts,  the  court  ordering  an  amount  to  remain  charged  out  of  the  pur- 
chase money,  the  interest  of  which,  being  equal  to  her  annuity,  was  to  be 
paid  to  the  widow  for  life,  the  court  has  no  power,  on  petition  of  a  sub- 
sequent purchaser  of  the  farm,  to  order  the  daughter  to  give  bond  for,  or 
to  appoint  a  trustee  to  receive,  the  principal  of  the  charge.  The  will  cre- 
ated no  charge  and  the  former  court  had  no  authority  to  create  one,  nor 
can  the  present  court  authorize  the  payment  to  the  daughter  of  money 
already  due  her  or  compel  her  to  receive  it.  Refusal  to  accept  money  due 
is  no  wrong  for  which  there  is  a  remedy. 

Semble.  The  23d  section  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L. 
489,  does  not  cover  this  case. 

In  dismissing  the  petition,  the  court,  per  SMITH,  P.  J.,  said:  "Why 
should  the  petitioner  be  concerned  about  her  giving  a  bond?  It  can  be 
readily  seen  that  the  remaindermen  might  be  disturbed  if  this  money  is 
not  securely  guarded,  but  it  does  not  appear  how  the  petitioner  can  be  in- 
jured by  paying  as  by  the  terms  of  the  agreement  it  was  contracted  he 
should  pay.  There  is  nothing  in  the  agreement  about  payment  being  with- 
held until  the  payee  furnishes  security.  Again,  what  and  where  is  the  law 
by  which  a  demand  for  security  from  Levina  Carman  can  be  enforced  by 
anyone?  As  we  understand  the  case,  there  was  none  previous  to  the  pas- 
sage of  the  Fiduciaries  Act  of  June  7,  1917,  Section  23,  P.  L.  447,  and  it 
can  be  fairly  and  forcefully  argued  that  this  act  does  not  cover  this  case. 
It  does  not  seem  to  authorize  any  other  than  executors,  administrators 
with  the  will  annexed,  trustees  under  wills,  or  trustees  appointed  by  the 
court,  to  withhold  property  from  those  to  whom  it  has  been  bequeathed 
because  of  a  failure  or  refusal  by  them  to  give  security."  Ranck's  Est., 
27  Dist.  792,  35  Lane.  Rev.  205. 


FIDUCIARIES  ACT— SECTION  24  361 

470.  REMEDY  FOR  COLLECTION  OF  ALL  LEGA- 
CIES TO  BE  EXCLUSIVELY  IN  THE  OR- 
PHANS' COURT. 

SECTION  24.  The  remedy  for  the  collection  or  enforcement  of 
payment  or  delivery  of  all  legacies,  whether  pecuniary,  specific  or 
otherwise,  and  whether  charged  on  land  or  not,  shall  hereafter  be 
exclusively  in  the  orphans'  court,  saving  the  jurisdiction  of  other 
courts  in  actions  which  may  be  pending  at  the  time  of  the  approval 
of  this  act. 

NOTE. — This  is  a  new  section.  To  all  intents  and  purposes,  the  remedy 
for  the  collection  of  legacies  is  now  entirely  in  the  orphans'  court,  actions 
at  law  for  the  purpose  having  fallen  into  disuse.  The  payment  of  legacies 
in  general  being  essentially  a  part  of  the  distribution  of  estates  in  the 
orphans'  court,  and  that  court  having,  under  existing  laws,  full  power  to 
enforce  the  payment  of  legacies  charged  on  land,  it  would  seem  proper 
to  abolish  proceedings  in  the  court  of  common  pleas. 

The  commissioners  therefore  suggest  the  repeal  of  Sections  50,  52,  53, 
54,  55  and  56  of  the  Act  of  1834,  i  Purd.  1134,  1135.  Those  sections  were 
derived  in  part  from  the  Act  of  March  21,  1772,  i  Sm.  L.  383. 

The  Commissioners  of  1830  recited  the  provision  of  Section  3  of  the 
Act  of  1772,  which  authorized  the  court  in  which  an  action  for  a  legacy 
was  brought  to  appoint  auditors  to  ascertain  how  the  accounts  of  the 
executor  stood  and  how  the  assets  ought  to  be  apportioned,  and  remarked 
upon  the  great  inconvenience  of  this  method,  saying :  "The  best  course 
for  all  parties,  is  to  refer  all  questions  on  the  subject  of  accounts  and  as- 
sets, to  the  orphans'  court,  and  to  suspend  proceedings  in  the  other  courts, 
until  the  result  of  the  settlement  in  that  tribunal  is  ascertained." 

The  present  commissioners  now  recommend  that  the  legislature  take 
one  step  more  and  abolish  the  remedy  by  action  at  law. 

This  section  of  the  Fiduciaries  Act  does  not  include  owelty  in  partition, 
secured  by  recognizance  in  the  orphans'  court.  In  so  holding,  GIU,AN, 
P.  J.,  said: 

"If  the  legislature  had  intended  that  the  remedy  for  the  collection  of 
owelty  in  partition,  charged  by  recognizance  in  the  orphans'  court,  should 
be  exclusively  in  that  court,  it  would  have  said  so ;  unless  it  does  say  so, 
the  courts  can  not  so  hold.  By  Act  of  24  February,  1834,  P.  L.  70  it  was 
provided  that  it  should  be  lawful  for  any  one  to  whom  a  bequest  of  money 
was  to  be  made,  to  bring  an  action  at  law  for  the  recovery  of  the  same. 
By  the  Act  of  1917  this  has  been  repealed  and  the  remedy  is  now  exclu- 
sively in  the  orphans'  court.  But  this  does  not  apply  to  owelty  in  partition 
charged  upon  lands."  Poe's  Est.,  47  Pa.  C.  C.  590,  29  Dist.  857,  68  P.  L. 
J.  635,  15  Del.  381. 


362  FIDUCIARIES  ACT— SECTION  25  GO 

471.  PROCEDURE  TO  ENFORCE  PAYMENT  OF 
LEGACIES  CHARGED  ON  LAND;  PETITION, 
NOTICE  DECREE  FOR  PAYMENT;  SALE  AND 
DISTRIBUTION  OF  PROCEEDS;  DECREE  TO 
ENFORCE  PAYMENT  OF  INTEREST. 

SECTION  25.  (a)  In  all  cases  in  which,  by  the  provisions  of  any 
last  will  and  testament,  or  by  the  provisions  of  this  act,  or  by  pro- 
ceedings in  the  orphans'  court  in  any  county,  any  legacy  or  any 
money  payable  at  a  future  period,  or  any  money  the  interest  on 
which  is  payable  to  any  person,  is  or  shall  be  hereafter  charged 
upon,  or  payable  out  of  real  estate,  it  shall  be  lawful  for  the  legatee 
or  the  person  entitled  to  such  money  or  interest  to  apply  by  petition 
to  the  orphans'  court  having  jurisdiction  of  the  accounts  of  the 
fiduciary.  On  the  presentation  of  such  petition,  the  court,  having 
caused  due  notice  to  be  given  to  such  fiduciary,  and  the  devisee  or 
heir,  as  the  case  may  be,  and  the  present  owner,  of  the  real  estate 
charged  with  such  legacy,  sum  of  money  or  interest,  and  to  such 
persons  interested  in  the  estate  or  property  as  justice  may  require, 
may  proceed  according  to  equity  to  make  a  decree  directing  such 
devisee,  heir  or  owner  to  pay  the  amount  of  such  legacy,  sum  of 
money  or  interest  then  due,  within  a  time  to  be  limited  by  such 
decree,  and  providing  that  in  case  such  devisee,  heir  or  owner  shall 
fail  to  make  payment  within  such  time,  the  fiduciary,  or  a  trustee 
to  be  appointed  by  said  court,  in  its  discretion,  shall,  after  giving 
public  notice  of  such  sale,  once  a  week  for  a  period  of  three  weeks 
before  the  day  appointed  therefor,  by  advertisement,  in  at  least 
one  newspaper  published  in  the  county  if  there  be  one,  or,  if  there 
be  none,  then  in  an  adjoining  county,  and  by  handbills  posted  at  a 
conspicuous  place  on  the  real  estate  proposed  to  be  sold  and  in  at 
least  three  of  the  most  public  places  in  the  vicinity  of  such  estate, 
make  sale  of  said  real  estate  or  so  much  thereof  as  may  be  nec- 
essary, for  the  purpose  of  payment  of  such  legacy,  sum  of  money 
or  interest.  The  proceeds  of  such  sale  shall  be  distributed,  under 
the  direction  of  said  court,  as  in  other  cases  of  judicial  sales,  to 
the  persons  legally  entitled  to  receive  the  same.  In  the  case  of 
money  charged  upon  real  estate,  the  interest  on  which  is  payable 
to  any  person,  the  court  may,  instead  of  directing  a  sale  of  such 
real  estate  as  aforesaid,  make  such  decree  or  order  to  enforce  pay- 
ment of  said  interest  as  shall  be  just  and  proper. 

NOTE. — This  is  a  combination  of  Section  59  of  the  Act  of  1834,  I  Purd. 
1135,  Section  i  of  the  Act  of  May  17,  1866,  P.  L.  1096,  3  Purd.  3388,  as 


FIDUCIARIES  ACT— SECTION  25  (a),  (&)  363 

amended  by  the  Act  of  March  22,  1907,  P.  L.  29,  6  Purd.  7036,  and  Section 
I  of  the  Act  of  April  28,  1809,  P.  L.  120,  3  Purd.  3389. 

Sections  59,  60  and  61  of  the  Act  of  1834  were  new  in  that  act,  and  were 
intended  "to  remedy  a  serious  defect  in  our  jurisprudence,  arising,  like 
many  others,  from  the  attempt  to  obtain  justice  with  the  insufficient  ma- 
chinery of  our  common  law  courts,"  the  remedy,  before  the  Act  of  1834, 
having  been  solely  by  actions  at  law. 

Section  24  of  the  present  draft  (see  470  supra)  makes  the  remedy  in  the 
orphans'  court  exclusive. 

Section  59  of  the  Act  of  1834  ends,  "to  make  such  decree  or  order 
touching  the  payment  of  the  legacy,  out  of  such  real  estate,  as  may  be 
requisite  and  just."  It  has  been  held  that  the  writ  of  levari  facias  is  the 
proper  process  for  enforcing  such  a  decree :  Hart  v.  Homiller's  Executor, 
23  Pa.  39.  The  change  is  made  so  as  to  provide  for  sale  by  the  executor 
or  a  trustee,  and  the  procedure  is  made  to  conform  with  sales  for  payment 
of  debts.  The  provisions  have  also  been  extended  so  as  to  include  the 
terre  tenant.  In  line  6,  "person"  has  been  substituted  for  "widow,"  and 
corresponding  changes  have  been  made  in  this  and  the  following  clauses. 
"Once  a  week  for  a  period  of  three  weeks"  has  been  substituted  for  "at 
least  twenty  days." 

The  Act  of  1866  includes  charges  on  land  by  proceedings  in  the  orphans' 
court,  and  the  amendment  of  1907  added  the  words  "or  otherwise,"  which 
are  now  omitted.  The  Act  of  1899  was  intended  to  facilitate  the  collection 
of  dower  interest  in  cases  of  the  absence  or  non-residence  of  the  owners 
of  the  land. 

Where  a  testator  gives  to  his  wife  an  annuity  for  life  and  directs  that 
"the  same  shall  be  a  lien  upon  any  real  estate  of  which  I  may  die  seized," 
and  after  giving  the  remainder  of  the  income  of  his  estate  to  certain  per- 
sons for  life,  further  directs  that  the  corpus  of  his  estate  shall  be  divided 
among  his  grandchildren  "subject  to  all  the  limitations,  previous  gifts, 
and  bequests  heretofore  set  forth,"  the  widow,  on  a  deficiency  of  income 
from  the  annuity,  is  entitled  to  proceed  under  the  Act  of  February  24, 
1834,  P.  L.  84  (incorporated  under  Section  25  of  the  Fiduciaries  Act  of 
June  7,  1917,  P.  L.  447),  to  have  her  annuity  charged  upon  the  land.  John- 
ston's Est.,  264  Pa.  71,  107  Atl.  335. 

472.  PROCEDURE  WHERE  LAND  LIES  IN  AN- 
OTHER COUNTY  OR  IS  DIVIDED  BY  A 
COUNTY  LINE. 

(b)  If  the  real  estate  charged  with  such  legacy,  sum  of  money 
or  interest  shall  be  situated  in  a  county  or  counties  other  than  that 
the  orphans'  court  of  which  has  jurisdiction  of  the  accounts  of  the 
fiduciary,  and  the  devisee,  heir  or  owner,  against  whom  such  decree 
has  been  made,  shall  fail  to  comply  therewith  according  to  the 
terms  thereof,  such  decree  may  be  certified  to  the  orphans'  court 
of  any  county  in  which  such  real  estate  is  situated,  or,  in  case  such 
real  estate  is  divided  by  a  county  line,  then  to  the  orphans'  court 


364  FIDUCIARIES  ACT— SECTION  25  (fr),  (c) 

of  the  county  where  the  mansion  house  may  be  situated,  or,  if 
there  be  no  mansion  house,  to  the  county  where  the  principal  im- 
provements may  be,  or,  if  there  be  no  improvements,  to  either 
county.  Upon  such  certification  and  petition  filed  by  the  legatee 
or  the  person  entitled  to  such  money  or  to  such  interest,  it  shall 
be  the  duty  of  the  said  orphans'  court  to  make  an  order  for  the 
sale  of  so  much  and  such  parts  of  such  real  estate  as  shall,  in  their 
opinion,  be  necessary  to  raise  the  specified  sum  and  to  direct  the 
fiduciary,  or  a  trustee  to  be  appointed  by  said  court,  to  make  such 
sale  after  public  notice  as  aforesaid  given  in  each  of  the  counties 
in  which  the  real  estate  is  situated.  Such  fiduciary  or  trustee  shall 
in  all  cases  make  return  of  his  proceedings,  in  relation  to  such  sale, 
to  the  orphans'  court  making  such  order  of  sale,  when,  if  the  same 
be  approved  by  said  court,  it  shall  be  confirmed ;  but  the  proceeds 
of  such  sale  shall  be  distributed  under  the  direction  of  the  court 
having  jurisdiction  of  the  accounts  of  the  fiduciary  or  trustee,  as 
provided  in  clause  (a)  of  this  section.  In  the  case  of  money 
charged  upon  real  estate,  the  interest  on  which  is  payable  to  any 
person,  the  orphans'  court  to  which  the  decree  is  certified,  as  afore- 
said, may,  instead  of  directing  a  sale  of  such  real  estate  as  afore- 
said, make  such  decree  or  order  to  enforce  payment  of  said  in- 
terest as  shall  be  just  and  proper. 

NOTE. — This  is  Section  60  of  the  Act  of  1834,  i  Purd.  1136,  modified  so 
as  to  correspond  to  the  changes  made  in  .the  last  preceding  clause,  so  as 
to  provide  for  the  filing  of  a  petition  by  the  legatee  or  other  person  en- 
titled to  payment,  so  as  to  include  the  case  where  the  land  is  situated  in 
other  counties,  and  so  as  to  make  the  procedure  conform  to  that  pre- 
scribed in  relation  to  the  sale  of  real  estate  for  the  payment  of  debts  of 
a  decedent 

473.  BOND  BY  LEGATEE  OR  OTHER  PERSON  EN- 
TITLED TO  BENEFIT  OF  DECREE  FOR  PAY- 
MENT. 

(c)  Before  such  legatee  or  other  person  shall  be  entitled  to  the 
benefit  of  any  decree  made  under  the  provisions  of  this  section  for 
payment  by  the  devisee,  heir  or  owner  of  the  real  estate  of  the 
amount  of  such  legacy,  sum  of  money  or  interest,  he  or  she  shall 
give  such  security  as  the  court,  in  which  application  was  originally 
made,  shall  direct,  for  the  indemnity  of  the  devisee,  heir,  owner, 
or  other  persons  interested,  in  the  event  of  any  debt  due  by  the 
testator  being  recovered,  for  the  payment  of  which  such  real  es- 
tate would  be  liable. 


FIDUCIARIES  ACT— SECTIONS  25  (c)-26  (a)  365 

NOTE. — This  is  Section  61  of  the  Act  of  1834,  i  Purd.  1136,  modified  so 
as  to  apply  only  to  the  decree  for  payment. 

474.  DISCHARGE  OF  RESIDUARY  ESTATE  FROM 
ANNUITIES  OR  LEGACIES  PAYABLE  IN  FU- 
TURE,—PETITION. 

SECTION  26.  (a)  Whenever  any  testator  shall  have  heretofore, 
by  his  last  will  and  testament  duly  proven,  given  or  bequeathed 
any  annuity  or  annuities  to  any  person  or  persons,  or  directed  the 
payment  of  an  annuity  or  annuities  by  his  executors  or  by  trustees, 
or  bequeathed  legacies  of  principal  sums  payable  at  a  future  period, 
or  upon  contingencies  or  under  other  circumstances  by  which  the 
payment  or  discharge  and  satisfaction  of  such  legacies  may  be  post- 
poned, or  may  not  take  place  until  a  distant  period  after  the  death 
of  such  testator,  and  either  by  the  express  words  of  the  will,  or 
by  the  rules  of  law  in  the  construction  thereof,  such  annuities  or 
legacies  are  made  or  become  a  charge  upon  all  the  residuary  real 
or  personal  estate  of  the  testator,  and  whenever  any  testator  shall 
hereafter  make  any  such  bequest  and  provisions,  in  any  such  case, 
it  shall  be  lawful  for  the  executors  of  any  such  will,  or  for  any 
such  annuitant  or  legatee,  or  for  any  person  interested  in  such 
residuary  estate,  at  any  time  after  the  expiration  of  six  months 
from  the  granting  of  letters  testamentary,  to  apply  by  petition  to 
the  orphans'  court  having  jurisdiction  of  the  accounts  of  such 
executors,  setting  forth  the  facts  and  praying  relief. 

NOTE. — This  is  the  first  part  of  Section  i  of  the  Act  of  February  23, 
I8S3,  P.  L.  98,  i  Purd.  1136,  the  section  having  been  divided  on  account  of 
its  excessive  length. 

The  only  changes  made  in  this  part  are  to  substitute  the  period  of  six 
months  for  one  year,  and  to  add  the  words  "real  or  personal"  before  "es- 
tate of  the  testator." 

Section  26  of  the  Fiduciaries  Act  extended  the  practice  provided  under 
the  Act  of  February  23,  1853  (P.  L.  98),  to  residuary  personal  estate  as 
well  as  real  estate.  GEST,  J.,  in  Channon's  Est.,  27  Dist.  479,  47  Pa.  C.  C. 
637,  affirmed  in  266  Pa.  417,  109  Atl.  756. 

"A  petition  was  presented  by  the  Schuylkill  Trust  Company,  executor 
of  the  last  will  and  testament  of  John  J.  Cullen,  praying  that  a  citation 
be  issued  to  show  cause  why  the  real  estate  of  John  J.  Cullen,  deceased, 
should  not  be  sold  for  the  purposes  set  forth  in  the  petition.  The  seventh 
clause  of  the  petition  recites  that  'in  order  to  fully  discharge  the  debts 
of  the  decedent  and  pay  all  bequests  it  is  necessary  to  sell  and  dispose  of 
the  real  estate,'  and  in  paragraph  ten,  prays  the  court  to  grant  relief,  as 
provided  for  in  the  twenty-sixth  section  of  the  Fiduciaries  Act  of 
1917-  .  .  • 


366  FIDUCIARIES  ACT— SECTION  26  (a),  (ft),  (c) 

"The  purpose  of  the  second  petition,  as  stated  in  clause  seven,  is  to  se- 
cure the  discharge  of  the  debts  and  bequests  of  the  testator.  It  is  alleged 
that  this  is  a  proceeding  under  the  twenty-sixth  section  of  the  Fiduciaries 
Act  of  1917.  An  examination  of  this  section  shows  that  it  is  a  repetition 
of  the  Act  of  1853,  with  slight  modifications  and  it  does  not  authorize  the 
court  to  direct  a  sale  of  real  estate  for  the  payment  of  debts  and  legacies, 
or  of  either  debts  or  legacies.  In  fine,  it  does  not  authorize  the  sale  of 
real  estate  at  all,  and  this  court  had  no  jurisdiction  to  order  a  sale  of  this 
real  estate  under  this  proceeding.  And  if  the  purchasers  of  real  estate 
have  any  title  it  is  an  exceedingly  doubtful  one. 

"The  account  shows  that  there  was  sufficient  personal  property  in  this 
estate  to  pay  the  debts.  The  executor  should  have  contented  itself  with 
the  administration  of  the  personal  estate,  and  thus  its  duty  as  executor 
would  have  been  fully  discharged.  The  will  did  not  charge  the  land  with 
the  payment  of  legacies;  but  if  it  did,  the  executor  was  not  the  proper 
person  to  petition  the  court  to  secure  their  payment"  WH.HELM,  P.  J.,  in 
Cullen's  Est^  16  Scb,  278. 

475.  CITATION,      HEARING,      APPOINTMENT      OF 

MASTER 

(&)  Upon  the  filing  of  such  petition,  the  court  may  order  a  cita- 
tion to  be  issued  to  the  parties  interested,  to  appear  at  a  day  cer- 
tain, to  show  cause  why  the  relief  prayed  for  should  not  be  granted ; 
and  upon  the  return  of  such  citation,  if  all  the  annuitants,  legatees 
and  other  persons  interested  shall  have  had  due  notice  of  the  appli- 
cation, the  court  may  itself  inquire  into  the  circumstances,  the 
amount  and  condition  of  the  estate,  and  the  expediency  and  pro- 
priety of  exempting  any  part  or  portion  of  the  residuary  real  or 
personal  estate  from  the  lien  and  charge  of  such  annuities  and 
legacies,  or  either  of  them,  having  due  regard  to  the  absolute  and 
ultimate  security  of  such  annuities  and  legacies ;  or  the  court  may, 
at  its  discretion,  refer  the  case  to  a  master,  with  directions  to  in- 
quire into  the  matters  aforesaid  and  to  report  thereupon. 

NOTE. — This  is  the  second  part  of  Section  i  of  the  Act  of  February  23, 
I853,  P-  L.  98,  I  Purd,  1137,  altered  by  extending  its  provisions  to  residu- 
ary personal  as  well  as  real  estate,  and  by  providing  that  the  case  may 
be  referred  to  a  master  instead  of  an  auditor. 

476.  DECREE  DIRECTING  SETTING  APART  OR  IN- 

VESTING OF  SO  MUCH  OF  RESIDUARY  ES- 
TATE AS  WILL  SECURE  PAYMENT  OF  AN- 
NUITIES OF  LEGACIES. 

(c)  After  such  inquiry  by  the  court  or,  if  the  case  is  referred 
to  a  master,  after  his  report  has  been  made  and  after  notice  thereof 
to  all  persons  interested,  it  shall  be  lawful  for  the  court  to  make 


FIDUCIARIES  ACT— SECTION  26  (c),  (rf)  367 

a  decree  in  the  premises,  and  if  it  shall  appear  that  all  the  debts  of 
the  testator  have  been  paid  or  sufficiently  secured,  the  court  may 
enter  a  decree  that  such  part  or  parts  of  the  residuary  real  estate, 
or  such  real  securities  or  investments  in  public  stocks  or  bonds, 
or  such  securities  as  now  are  or  may  hereafter  be  authorized  by 
law  as  investments  by  trustees,  shall  be  set  apart  or  appropriated 
or  that  such  part  of  the  residuary  estate  shall  be  so  invested  as, 
in  the  judgment  of  the  court,  shall  appear  to  be,  and  with  rea- 
sonable probability  continue  to  be,  adequate  and  sufficient,  beyond 
all  charges,  expenses  and  deductions,  for  the  payment  of  such  an- 
nuities and  legacies,  providing  always  a  sufficient  surplus  to  meet 
any  contingent  diminution  or  depreciation  in  the  value  or  income 
of  the  estate  and  securities  so  set  apart. 

NOTE. — This  is  the  third  part  of  Section  i  of  the  Act  of  February  23, 
1853,  i  Purd.  1137. 

It  has  been  changed  by  inserting  the  provisions  at  the  beginning,  to  cover 
cases  where  the  court  itself  hears  the  evidence ;  by  inserting  after  "public 
stocks"  the  words  "or  bonds ;"  by  adding  the  provision  as  to  other  legal 
investments ;  and  by  adding  the  provision  for  investment,  to  cover  cases 
where  the  residuary  estate  consists  of  other  than  legal  investments.  There 
are  also  slight  changes  in  phraseology. 

477.     DISCHARGE    OF    REMAINING    ESTATE;     AP- 
PEALS. 

(d)  When  such  decree  shall  have  been  made,  it  shall  be  further 
lawful  for  the  court  to  order  and  decree  that  all  the  remaining  real 
or  personal  estate  of  the  testator,  or  both,  not  so  specifically  set 
apart,  shall  be  and  remain  discharged  and  exonerated  from  the  lien 
and  charge  of  any  and  every  such  annuity  and  legacy,  and  such 
decree  shall  have  the  force  and  effect  of  discharging  and  exon- 
erating all  such  real  or  personal  estate,  or  both,  accordingly :  Pro- 
vided, That  an  appeal  from  a  decree  granting  or  refusing  such 
petition  may  be  taken  to  the  proper  appellate  court  within  six 
months  after  the  entry  of  the  same,  as  in  other  cases :  And  pro- 
vided further,  That  nothing  in  this  section  contained  shall  be 
deemed  or  held  to  authorize  the  exoneration  of  any  real  estate 
which  may  have  been  or  may  be  specifically  charged  by  a  testator 
with  the  payment  of  any  annuity  or  legacy. 

NOTE. — This  is  the  last  part  of  Section  i  of  the  Act  of  February  23, 
1853,  i  Purd.  1137. 

The  words  "or  personal"  have  been  inserted  in  the  third  line.  After 
"annuity  and  legacy,"  in  the  sixth  line,  the  following  has  been  omitted : 
"in  the  hands  of  any  bona  fide  purchaser  of  such  real  estate  for  a  valuable 


368  FIDUCIARIES  ACT— SECTION  26  (<f),  (e),  (/) 

consideration."    No  reason  appears  why  the  exoneration  should  not  oper- 
ate in  favor  of  devisees  and  legatees. 

The  provision  as  to  appeal  has  been  changed  so  as  to  meet  the  decision 
in  McCredy's  Appeal,  64  Pa.  428,  that  an  appeal  under  this  section  lay  only 
when  the  decree  was  in  favor  of  the  petitioner.  The  words  "proper  ap- 
pellate" have  been  substituted  for  "supreme"  in  the  first  proviso,  and  the 
period  for  appeal  has  been  made  six  months  instead  of  one  year. 

478.     CUSTODY     OF     PORTION     OF     ESTATE     SET 
APART;    ACCOUNTS,  SURPLUS  INCOME. 

(e)  The  real  estate,  securities  and  investments,  set  apart  and 
appropriated  by  order  of  the  court  as  aforesaid,  shall  be  and  con- 
tinue in  the  possession,  charge  and  management  of  the  executors, 
trustees  or  other  persons  to  whom  the  same  may  have  been  devised 
or  bequeathed  by  the  testator  as  aforesaid,  under  and  subject  to 
the  charge  of  such  annuities  and  legacies.  It  shall  be  the  duty  of 
every  such  executor,  trustee  and  other  person,  upon  request  of 
any  person  interested,  to  file  with  said  court,  at  the  expiration  of 
one  year  after  such  decree  shall  have  been  made,  and  at  the  expira- 
tion of  every  year  thereafter  until  the  termination  of  such  trust, 
an  account  setting  forth  the  situation  and  circumstances  of  such 
estate,  securities  and  investments,  and  the  annual  income  there- 
from, and  the  payments  thereout.  If,  upon  such  account,  it  shall 
appear  to  the  court  that  the  said  income  exceeds,  in  any  consider- 
able degree,  the  amount  of  the  existing  annuities  and  other  charges 
and  expenses  payable  thereout,  it  shall  be  lawful  for  the  court  to 
order  and  decree  that  such  surplus  income  may  be  paid  over  to 
such  persons  as  may  be  entitled  to  the  residuary  estate  under  the 
provisions  of  the  will,  or  the  court  may,  in  their  discretion,  order 
and  decree  that  the  same  be  invested  in  real  securities,  public  stocks 
or  bonds,  or  such  securities  as  now  are  or  may  hereafter  be  author- 
ized by  law  as  investments  by  trustees,  for  the  further  or  additional 
security  of  such  annuitants  or  legatees. 

NOTE.— This  is  Section  2  of  the  Act  of  February  23,  1853,  P.  L.  98, 
I  Purd.  1137,  changed  by  inserting  "investments"  instead  of  "stocks  or 
bonds"  in  the  first  line  and  in  corresponding  places ;  by  changing  "make 
report  to  the  court"  to  "file  with  said  court;"  by  providing  that  the  ac- 
counts shall  be  filed  at  the  request  of  any  person  interested ;  and  by  in- 
serting at  the  end  "or  such  securities  as  now  are  or  may  hereafter  be 
authorized  by  law  as  investments  by  trustees." 

479.  REDUCTION  OF  FUND  SET  APART. 

(/)  Upon  the  application  of  any  person  interested  in  any  resid- 
uary estate,  set  apart  as  aforesaid,  setting  forth  that,  by  reason  of 
the  decease  of  any  such  annuitant,  or  by  the  happening  of  any 


FIDUCIARIES  ACT— SECTIONS  26  (/),  (g)-2j  (o)  i  369 

other  event,  the  charge  of  any  annuity  or  legacy  as  aforesaid  has 
become  extinguished,  in  fact  or  law,  it  shall  be  lawful  for  the  said 
court,  from  time  to  time,  after  due  notice  and  inquiry  into  the 
facts,  to  make  an  order  and  decree  for  the  exoneration  and  dis- 
charge of  such  part  or  portion  or  so  much  of  the  real  estate,  securi- 
ties and  investments,  so  set  apart  and  appropriated,  as  may  appear 
to  such  court  to  be  beyond  the  amount  requisite  or  proper  for  the 
purpose  of  providing  a  sufficient  continuing  security  for  the  pay- 
ment of  the  remaining  annuities  and  legacies.  Every  such  order 
or  decree  shall  have  the  same  force  and  effect  in  respect  to  the 
real  estate,  securities  and  investments,  therein  and  thereby  exon- 
erated and  discharged,  as  is  declared  in  clause  (d)  of  this  section, 
in  respect  to  the  residuary  estate  not  specifically  set  apart  and  ap- 
propriated. An  appeal  from  the  entry  of  or  refusal  to  enter  such 
order  or  decree  may  be  taken  to  the  proper  appellate  court  within 
six  months,  as  in  other  cases. 

NOTE.— This  is  Section  3  of  the  Act  of  February  23,  1853,  I  Purd.  1137, 
the  phraseology  being  altered  to  conform  to  clause  (e),  and  the  last  sen- 
tence being  added  to  correspond  to  clause  (d). 

480.  RIGHTS  TO  ULTIMATE  ENJOYMENT  OF  RE- 

SIDUARY ESTATE  SET  APART  NOT  TO  BE 
AFFECTED. 

(g)  Nothing  in  this  section  contained,  or  in  any  decree  or  order 
made  by  any  orphans'  court  by  the  authority  of  this  section,  shall 
be  deemed  or  held  to  affect  in  any  way  the  legal  or  equitable  rights 
of  any  person  or  persons  interested  in  the  residuary  estate  set  apart 
and  appropriated  as  aforesaid,  but  all  such  rights  to  the  ultimate 
enjoyment  of  such  estate  shall  remain  and  continue  as  before  the 
passage  of  this  act,  so  far  as  the  provisions  of  this  section  are 
concerned. 

NOTE. — This  is  Section  4  of  the  Act  of  February  23,  1853,  I  Purd.  1138. 
The  changes  are  the  substitution  of  "section"  for  "act"  in  the  first  and 
third  lines,  and  the  addition,  at  the  end,  of  the  words  "so  far  as  the  pro- 
visions of  this  section  are  concerned." 

481.  DISCHARGE  OF  REAL  ESTATE  FROM  LIEN  OF 

LEGACIES  AND  OTHER  CHARGES,— WHERE 
PERSONS  TO  WHOM  PAYMENT  IS  DUE  CAN- 
NOT BE  FOUND,— JURISDICTION;  PETITION 
AND  NOTICE. 

SECTION  27.  (a)  I.  In  all  cases  in  which,  under  any  proceeding 
in  any  orphans'  court  of  this  commonwealth,  or  by  any  last  will 
24 


370  FIDUCIARIES  ACT— SECTION  27  (a)  i,  2 

and  testament,  or  by  the  provisions  of  this  act,  any  dower,  legacy, 
recognizance  or  other  charge  shall  have  been  imposed  upon  land, 
or  any  part  thereof,  and  such  charge  is  due  and  payable,  and  the 
person  or  persons  to  whom  such  payment  is  due  cannot  be  found 
after  diligent  and  reasonable  search,  it  shall  be  lawful  for  the 
owner  of  the  land  charged  to  apply  by  petition  to  the  orphans' 
court  of  the  county  where  said  land  is  situated,  or,  in  case  said 
land  is  divided  by  a  county  line,  to  the  orphans'  court  of  the  county 
where  the  mansion  house  may  be  situated,  or,  if  there  be  no  man- 
sion house,  in  the  county  where  the  principal  improvements  may 
be,  or,  if  there  be  no  improvements,  in  either  county,  setting  forth 
the  circumstances  of  the  case,  the  name  or  names  of  the  person 
or  persons  to  whom  such  payment  is  due  or  the  fact  that  such 
names  are  unknown,  and  the  time  when  such  legacy  or  charge, 
or  any  part  thereof,  became  due  and  payable,  and  a  description  of 
the  land  subject  to  the  charge.  Thereupon  said  court  shall  make 
an  order  directing  such  petitioner  to  give  public  notice  of  the  facts 
set  forth  in  such  petition,  by  publication  once  a  week  for  four 
successive  weeks  in  one  or  more  newspapers  published  within  or 
nearest  to  said  county  or  within  or  nearest  to  each  of  said  counties, 
requiring  the  person  or  persons  to  whom  such  legacy  or  charge, 
or  any  part  thereof,  is  due  and  payable,  or  who  wish  to  lay  claim 
to  the  moneys  as  aforesaid,  to  appear  in  court  on  a  day  designated, 
not  less  than  twenty  days  after  the  last  publication  of  said  notice, 
and  show  cause  why  the  amount  so  due  and  payable,  as  set  forth 
in  said  petition,  should  not  be  paid  into  said  court. 

NOTE. — This  is  the  first  part  of  Section  i  of  the  Act  of  July  14,  1897, 
P.  L.  269,  3  Purd.  3388,  condensed  by  omitting  unnecessary  repetitions. 
The  first  part  has  been  changed  so  as  to  be  uniform  with  clause  (6)  i  of 
this  section.  Provision  has  been  made  for  cases  where  the  land  is  divided 
by  a  county  line ;  and  the  provisions  for  notice  have  been  modified  by 
requiring  publication  for  four  weeks  and  appearance  not  less  than  twenty 
days  after  the  last  publication,  instead  of  publication  for  three  weeks  be- 
fore the  first  day  of  the  next  term  of  court  and  appearance  at  the  next 
term. 

482.  HEARINGS;  ASCERTAINMENT  OF  AMOUNT 
OF  CHARGE;  PAYMENT  INTO  COURT;  RE- 
CORDING OF  DECREE. 

2.  If  no  person  shall  appear  to  show  cause,  as  aforesaid,  or  if 
the  person  or  persons  appearing  shall  fail  to  show  that  he  or  they 
are  entitled  to  such  moneys,  the  court,  being  satisfied  of  the  truth 
of  the  facts  set  forth  in  said  petition,  shall  enter  a  decree  that  the 


FIDUCIARIES  ACT— SECTION  27  (a)  2,  (&)  i  371 

amount  of  such  legacy  or  charge,  or  part  thereof,  due  and  pay- 
able to  the  time  of  final  decree,  be  paid  into  court,  and  that,  upon 
such  payment,  such  real  estate  shall  be  discharged  from  the  lien 
of  such  legacy  or  charge,  or  from  so  much  thereof  as  shall  be  so 
paid  into  court.  When  the  amount  of  such  legacy  or  other  charge 
does  not  appear  as  a  matter  of  record,  the  court  may,  by  appoint- 
ment of  a  master  or  by  investigation  in  open  court,  ascertain  and 
fix  such  amount.  A  certified  copy  of  such  decree  may  be  recorded 
in  the  deed  book  in  the  office  for  recording  deeds  in  every  county 
where  such  real  estate  or  any  part  thereof  is  situated,  in  the  same 
manner  and  with  like  effect  as  deeds  of  conveyance  of  real  estate, 
are  recorded,  and  shall  be  indexed  by  the  recorder  in  the  grantors' 
index  under  the  name  of  the  decedent  and  in  the  grantees'  index 
under  the  name  of  the  owner  of  the  land ;  and  the  charges  for  re- 
cording shall  be  the  same  as  are  provided  by  law  for  similar 
services. 

NOTE. — This  is  the  remainder  of  Section  i  of  the  Act  of  July  14,  1897, 
3  Purd.  3388,  condensed  in  the  same  manner  as  the  first  part,  and  modified 
as  to  the  decree  and  recording  so  as  to  follow  the  provisions  of  the  Act 
of  1861,  clause  (c*)  of  this  section. 

483.     WHERE  CHARGE  HAS  BEEN  PAID,  OR  IS  PRE- 
SUMED TO  BE  PAID,— JURISDICTION. 

(&)  i.  In  all  cases  in  which,  under  any  proceeding  in  any  or- 
phans' court  of  this  commonwealth,  or  by  any  last  will  and  testa- 
ment, or  by  the  provisions  of  this  act,  any  dower,  legacy,  recogni- 
zance, or  other  charge  shall  have  been  imposed  upon  land,  payable 
presently  or  at  a  future  time,  and  such  charge  shall  have  been  paid, 
or  a  period  of  twenty  years  shall  have  elapsed  after  the  principal 
of  such  charge  has  become  due  and  payable  and  no  payment  shall 
have  been  made  within  such  period  on  account  of  such  charge  by 
the  owner  or  owners  of  the  land,  and  no  sufficient  satisfaction, 
release,  acquittance  or  acknowledgment  of  payment  thereof  shall 
be  of  record  in  the  county  in  which  the  land  is  situated,  it  shall 
be  lawful  for  the  orphans'  court  of  said  county,  or,  in  case  said 
land  is  divided  by  a  county  line,  then  the  orphans'  court  of  the 
county  where  the  mansion  house  may  be  situated,  or,  if  there  be 
no  mansion  house,  in  the  county  where  the  principal  improvements 
may  be,  or,  if  there  be  no  improvements,  in  either  county,  to  en- 
tertain a  petition  for  the  discharge  of  said  land  from  the  lien  of 
said  charge. 


372  FIDUCIARIES  ACT— SECTION  27  (&)  1,2,3. 

NOTE.— This  is  the  first  part  of  Section  i  of  the  Act  of  May  8,  1895, 
P.  L.  44,  4  Purd.  4047,  altered  so  as  to  apply  only  to  charges  enforceable 
in  the  orphans'  court.  The  section  as  it  now  stands  includes  encumbrances 
and  charges  enforceable  in  the  common  pleas. 

This  part  of  the  section  has  been  modified  so  as  to  include  legacies  and 
other  charges,  and  thus  supply  Section  i  of  the  Act  of  June  8,  1893,"  P.  L. 
356,  4  Purd.  4046.  The  period  has  been  made  twenty  years,  which  is  the 
ordinary  period  for  presumption  of  payment,  instead  of  twenty-one  years. 

The  section  in  the  Act  of  1895  is  very  long  and  consists  of  one  sen- 
tence. It  is  here  subdivided  for  the  sake  of  clearness. 

Where,  on  a  petition  under  Section  27  (&)  of  the  Fiduciaries  Act  of 
1917,  P.  L.  447,  for  the  discharge  of  land  from  a  dower  fund,  the  weight 
of  the  evidence  showed  that  the  fund  in  question  was  paid  to  the  parties 
thereto  entitled  more  than  twenty-eight  years  before  the  hearing  of  the 
case,  and  in  the  opinion  of  the  court  was  sufficient  to  establish  this  fact, 
a  decree  discharging  the  land  from  the  fund  was  entered.  Harbold's  Est., 
34  York  149. 

484.  PETITION. 

2.  Such  petition  shall  be  presented  by  the  owner  or  owners  of 
said  land  or  any  part  thereof,  shall  be  duly  verified  by  affidavit, 
and  shall  set  forth  the  facts  and  allege  that  said  charge  has  been 
paid  or  that  no  payment  of  principal  or  interest  has  been  made 
within  said  period  of  twenty  years  on  account  of  said  charge  by 
the  present  owner  or  owners,  or,  so  far  as  can  be  ascertained,  by 
his  or  their  predecessors  in  title,  and  shall  state  the  names  of  all 
known  parties  interested  in  such  charge,  their  places  of  residence, 
if  known,  and  a  description  of  the  lands  subject  to  the  charge  and 
sought  to  be  released  and  discharged. 

NOTE. — This  is  the  second  part  of  Section  i  of  the  Act  of  May  8,  1895, 
P.  L.  44,  4  Purd.  4047. 

485.  CITATION. 

3.  Upon  the  presentation  of  such  petition,  it  shall  be  lawful  for 
said  court  to  issue  a  citation  in  the  manner  authorized  by  law  to 
all  such  parties,  which  citation  shall  be  served  as  other  citations  are 
required  to  be  served,  and  shall  require  the  parties  to  appear  in 
court  on  a  day  designated,  to  show  cause  why  said  land  should  not 
be  discharged  from  the  lien  of  such  dower,  legacy  or  other  charge. 

NOTE. — This  is  substituted  for  the  provisions  of  Section  i  of  the  Act 
of  May  8,  1895,  P.  L.  44,  4  Purd.  4047,  as  to  service  of  notice  and  publi- 
cation thereof  in  newspapers. 


FIDUCIARIES  ACT— SECTION  27  (6)  4,  (c)  373 

486.  HEARING,  DECREE,  RECORDING  OF  DECREE. 

4.  If  the  court,  aided  if  necessary  by  the  report  of  a  master, 
shall  determine,  at  a  hearing  held  in  pursuance  of  said  citation, 
that  such  dower,  legacy  or  other  charge  has  been  paid  or  is  other- 
wise no  longer  chargeable  upon  the  land  by  reason  of  any  presump- 
tion of  payment,  of  if  no  person  shall  appear  to  answer  the  cita- 
tion, or  if  all  parties  in  interest  shall  have  joined  in  the  petition 
upon  which  such  citation  was  issued,  the  court,  being  satisfied  of 
the  truth  of  the  allegations  of  the  petition,  shall  decree  that  the 
land  subject  to  the  charge,  or  any  part  thereof,  sought  to  be  re- 
leased or  discharged,  shall  be  released  and  discharged  from  the 
same  and  the  payment  thereof ;  and  a  certified  copy  of  such  de- 
cree may  be  recorded  in  the  office  for  recording  deeds  in  each 
county  where  such  land  or  any  part  thereof  is  situated,  upon  the 
terms  and  with  the  effect  provided  in  clause  (a),  paragraph  2  of 
this  section. 

NOTE. — This  is  the  last  part  of  Section  i  of  the  Act  of  May  8,  1895, 
4  Purd.  4047,  altered  so  as  to  conform  to  the  changes  made  in  the  previous 
parts  of  the  section,  and  so  as  to  provide  for  determination  of  the  ques- 
tions in  the  same  proceeding  instead  of  requiring  the  persons  claiming 
payment  to  institute  another  proceeding  to  enforce  payment. 

Section  2  of  the  Act  of  1895,  4  Purd.  4048,  provides  for  the  appoint- 
ment of  guardians  ad  litem,  and  is  omitted  as  unnecessary  in  view  of  the 
general  provisions  of  Section  59  (£)  of  the  present  draft.  (See  616  infra.) 

487.  CASES  NOT  PROVIDED  FOR  IN  CLAUSES  (A) 

AND  (B). 

(c)  Whenever  any  dower,  legacy,  recognizance  or  other  charge 
has  been  or  shall  be  charged  upon  or  payable  out  of  real  estate,  by 
virtue  of  any  last  will  and  testament,  by  the  provisions  of  this  act, 
or  under  any  proceeding  in  any  orphans'  court  of  this  common- 
wealth, or  whenever  it  shall  be  claimed  that  such  charge  exists,  it 
shall  be  lawful  for  said  court,  in  any  case  not  provided  for  by  the 
preceding  clauses  of  this  section,  on  petition  of  the  devisee  or 
heir  of  such  real  estate,  or  any  owner  thereof,  claiming  under  such 
devisee  or  heir,  to  authorize  such  petitioner  to  pay  into  said  court 
the  full  amount  of  such  legacy  or  other  charge;  whereupon  the 
said  court  shall  make  a  decree,  discharging  such  real  estate  from 
the  lien  of  such  legacy  or  other  charge,  or  from  so  much  thereof 
as  shall  be  so  paid  into  court ;  and  a  certified  copy  of  such  decree 
may  be  recorded  in  the  office  for  recording  deeds  in  any  county 
where  such  land  or  any  part  thereof  is  situated,  upon  the  terms 


374  FIDUCIARIES  ACT— SECTION  27  (c),  (rf) 

and  with  the  effect  provided  in  clause  (a),  paragraph  2  of  this 
section. 

NOTE. — This  is  Section  i  of  the  Act  of  May  i,  1861,  P.  L.  420,  I  Purd. 
1136,  modified  so  as  to  cover  all  cases  not  provided  for  by  the  preceding 
clauses  of  the  present  section  of  the  draft,  and  with  some  changes  in 
phraseology. 

Section  2  of  the  Act  of  May  17,  1866,  P.  L.  1096,  3  Purd.  3388,  is  covered 
by  the  provisions  of  this  and  the  preceding  clauses,  and  is  therefore  rec- 
ommended for  repeal. 

Sections  22  and  23  of  the  Act  of  April  26,  1850,  P.  L.  581,  3  Purd.  3436, 
extending  to  legacies  charged  on  land  the  provisions  of  Section  i  of  the 
Act  of  March  31,  1823,  P.  L.  216,  relating  to  the  satisfaction  of  mortgages, 
are  recommended  for  repeal,  the  matter  being  sufficiently  covered  by  the 
present  section  of  this  draft. 

The  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  does  not  give  the  or- 
phans' court  exclusive  jurisdiction  of  the  remedy  for  the  collection  of 
owelty  of  partition,  charged  by  recognizance  in  the  orphans'  court,  and  the 
jurisdiction  of  the  court  of  common  pleas  is  still  concurrent  in  such  case. 

"It  will  be  observed  that  clause  (c)  of  Section  27,  above  mentioned, 
provides  that  whenever  any  dower,  legacy,  recognizance,  or  any  other  charge 
shall  be  charged  upon  or  payable  out  of  real  estate  by  virtue  of  any  last 
will  and  testament  by  the  provisions  of  this  act,  or  any  proceeding  in  any 
orphans'  court  of  this  commonwealth,  *  *  *  it  shall  be  lawful  for  said 
court,  *  *  *  on  the  petition  of  a  devisee  or  heir,  to  authorize  such  peti- 
tioner or  debtor  to  pay  into  court  the  full  amount  of  such  legacy  or  charge, 
etc.  Nowhere  is  it  provided  that  this  shall  be  the  exclusive  method  of 
procedure.  It  is  true  that  the  Act  of  June  7,  1917,  above  cited,  repeals  the 
Act  of  May  17,  1866,  P.  L.  1096,  which  provided  a  method  of  procedure 
in  the  orphans'  court  on  a  recognizance  such  as  this.  The  procedure  by 
sci.  fa.  in  the  common  pleas  upon  a  recognizance  entered  in  the  orphans' 
court  has  been  so  long  practiced  and  approved  by  the  courts  in  this  state 
that  it  will  take  a  positive  act  of  assembly  to  destroy  that  remedy  *  *  * 
If  the  legislature  had  intended  that  the  remedy  for  the  collection  of 
owelty  in  partition  charged  by  recognizance  in  the  orphans'  court  should 
be  exclusively  in  that  court,  it  would  have  said  so ;  unless  it  does  say 
so,  the  court  cannot  so  hold."  GILLAN,  P.  J.,  in  Poe's  Est,  47  Pa.  C.  C. 
590,  29  Dist  857,  68  P.  L.  J.  635,  15  Del.  381. 

488.    DISTRIBUTION      OF     MONEYS     PAID    INTO 
COURT. 

(d)  All  moneys,  when  paid  into  court  under  the  provisions  of 
any  of  the  preceding  clauses  of  this  section,  shall  remain  therein 
until  the  legatee  or  other  person  claiming  the  same  shall  present 
a  petition  for  the  distribution  thereof,  whereupon  the  court  shall, 
after  due  notice  to  all  parties  interested,  make  distribution  of  said 
moneys  to  the  persons  legally  entitled  to  receive  the  same,  or  may, 


FIDUCIARIES  ACT— SECTIONS  27  (d),  (<>),  (/)-28  (a)        375 

in  its  discretion,  appoint  an  auditor  for  the  purpose  of  making 
such  distribution. 

NOTE. — This  is  a  combination  of  Section  2  of  the  Act  of  May  i,  1861, 
P.  L.  420,  I  Purd.  1136,  and  Section  2  of  the  Act  of  July  14,  1897,  P.  L. 
269,  3  Purd.  3389.  The  provision  for  appointment  of  an  auditor  is  derived 
from  Section  2  of  the  Act  of  May  17,  1866,  P.  L.  1096,  3  Purd.  3388,  but 
the  appointment  is  made  discretionary. 

The  Act  of  1861  provides  that  distribution  shall  be  made  "in  the  man- 
ner provided  for  the  distribution  of  the  proceeds  of  sheriff's  sales,  when 
paid  into  court  and  directed  to  be  paid  out." 

See  Poe's  Est,  47  Pa.  C.  C.  590,  29  Dist.  857,  68  P.  L.  J.  635,  15  Del.  381. 

489.  PAYMENT  OF  COSTS. 

(e)  All  costs  of  proceedings  under  the  provisions  of  any  of 
the  clauses  of  this  section  shall  be  paid  as  may  be  directed  by  the 
court. 

NOTE. — This  is  substituted  for  Section  3  of  the  Act  of  1895,  4  Purd. 
4048,  which  provides  that  the  costs  of  proceedings  on  petitions  presented 
under  the  act  shall  be  paid  by  the  petitioners,  but  that  the  costs  of  proceed- 
ings instituted  in  response  to  orders  under  the  provisions  of  the  act  shall 
abide  the  decision  of  such  proceedings. 

Section  4  of  the  Act  of  1895  is  a  general  repealing  clause,  with  a  proviso 
that  the  act  "shall  not  apply  to  any  proceedings  now  pending,  but  the  same 
may  be  proceeded  with  under  existing  laws  to  final  decree." 

490.  APPEALS. 

(/)  Any  party  aggrieved  by  any  definitive  order  or  decree  en- 
tered by  the  court  under  any  of  the  provisions  of  this  section  may 
appeal  from  such  order  or  decree  to  the  proper  appellate  court  as 
in  other  cases. 

NOTE. — This  is  a  new  clause,  introduced  in  order  to  remove  any  pos- 
sible doubt  as  to  the  right  of  appeal.  Some  of  the  existing  acts,  such  as 
Section  i  of  the  Act  of  May  8,  1895,  4  Purd.  4048,  contain  provisions  that 
the  decree  "shall  forever  thereafter  operate  as  a  release  and  discharge  of 
the  land  from  the  incumbrance  of  the  charge  and  shall  bar  all  actions 
brought  thereon,"  without  making  any  provision  for  an  appeal. 

491.  POWERS    OF   EXECUTORS   AS   TO   REAL   ES- 

TATE,—MERE    AUTHORITY    TO    SELL    THE 
SAME  AS  A  DEVISE  TO  SELL. 

SECTION  28.  (o)  The  executors  of  the  last  will  of  any  decedent, 
to  whom  is  given  thereby  a  naked  authority  only  to  sell  any  real 
estate,  shall  take  and  hold  the  same  interests  therein,  and  have  the 


376  FIDUCIARIES  ACT— SECTION  a8  (o) 

same  power  and  authorities  over  such  estate  for  all  purposes  of 
sale  and  conveyance,  and  also  of  remedy  by  entry,  by  action  or 
otherwise,  as  if  the  same  had  been  thereby  devised  to  them  to  be 
sold,  saving  always,  to  every  testator,  the  right  to  direct  otherwise. 

NOTE. — This  is  Section  13  of  the  Act  of  1834,  I  Purd.  1099,  which  corre- 
sponded to  Section  14  of  the  Commissioners'  Draft.  It  was  derived  sub- 
stantially from  Section  4  of  the  Act  of  March  31,  1792,  3  Sm.  L.  66. 

"The  auditing  judge  is  of  the  opinion  that  the  power  to  carry  out  the 
charitable  purpose  is  not  confined  alone  to  the  first  named  executor.  It 
is  true  that  in  conferring  this  power  the  testator  speaks  of  'my  executor,' 
using  the  singular  number,  but  this  the  testator  does  because  he  appoints 
one  person  sole  executor,  and  when  he  later  appoints  succeeding  executors 
in  the  event  of  the  original  executor's  death,  etc.,  his  apparent  purpose 
is  that,  in  any  event,  there  shall  be  some  one  in  the  office  of  executor  who, 
by  virtue  of  their  office,  shall  have  the  duty  of  carrying  out  this  provision 
of  the  will  as  well  as  the  duty  of  performing  the  other  services  required 
of  executors.  See,  generally,  Kershaw's  Estate,  27  Dist  R.  659;  Mur- 
phy's Estate,  184  Pa.  310;  Sheet's  Estate,  215  Pa.  164;  Fiduciaries  Act 
of  June  7,  1917,  Sees.  28  and  56,  P.  L.  447."  THOMPSON,  J.  (Adjudication), 
Barnwell's  Est,  49  Pa.  C.  C.  188,  29  Dist.  317,  affd.  in  269  Pa.  443. 

A  died  leaving  a  will  wherein  the  executor  was  directed  to  pay  the  debts 
and  funeral  expenses,  and  a  devise  was  made  of  $50  to  a  cemetery  com- 
pany. The  rest  and  residue  of  his  property,  real,  personal  and  mixed, 
was  given  to  his  wife  and  to  her  heirs.  The  last  clause  of  the  will  gave 
the  executor  full  power  and  authority  to  dispose  of  the  real  estate  "as 
may  be  for  the  best  interest  of  my  estate."  It  was  agreed  that  the  per- 
sonal estate  was  sufficient  to  pay  the  debts,  funeral  expenses,  the  dense 
to  the  cemetery  company,  costs  of  administration  and  taxes.  The  executor 
sold  the  real  estate  at  a  public  sale,  and  defendant  paid  some  down  money, 
and  subsequently  defendant  refused  to  pay  the  balance  or  to  take  title 
on  the  ground  that  the  executor  could  not  convey  a  marketable  title. 
Held,  as  the  personal  estate  was  sufficient  to  pay  the  items  mentioned, 
there  was  no  occassion  for  a  sale  of  the  real  estate ;  that  the  power  to  sell 
did  not  operate  as  a  conversion,  and  there  was  nothing  in  the  will  to 
show  that  the  testator  intended  that  there  should  be  a  sale  for  the  pur- 
pose of  distribution,  and  that,  therefore,  judgment  should  be  entered  for 
the  defendant 

"It  will  be  observed  that  there  is  no  direction  to  the  executor  to  sell. 
His  power  of  sale  is  'as  may  be  for  the  best  interest  of  my  estate.'  Such 
power  does  not  operate  as  a  conversion.  In  Chew  v.  Nicklin,  45  Pa.  84, 
the  syllabus  is :  'Conversion  is  a  question  of  intention ;  and  to  effect  it  by 
will,  the  direction  to  convert  therein  must  be  positive  and  explicit  A  bare 
power  to  sell,  given  to  executors  by  will,  does  not  operate  as  a  conversion. 
The  Act  of  Feb.  24,  1834,  P.  L.  70,  was  not  intended  to  break  descents  or 
work  a  conversion  of  real  estate  over  which  a  naked  power  of  sale  had 
been  given  to  executors,  but  only  to  enable  them  to  preserve  and  dispose 
of  the  estate  as  though  an  interest  had  been  devised  to  them  instead,  leav- 


FIDUCIARIES  ACT— SECTION  28  (a)  377 

ing  the  question  of  intention  to  convert  to  depend  upon  the  will  of  the 
testator.'  Testator  died  after  the  passage  of  the  Fiduciaries  Act  of  June 
7,  1917,  P.  L.  447,  but  the  28th  section  of  that  act  is  an  exact  copy  of  the 
Act  of  1834,  referred  to  above.  The  above  case  was  followed  in  Hunt's 
and  Lehman's  Appeals,  105  Pa.  128."  STEWART,  P.  J.,  in  Kolb  v.  O'Hay, 
28  Dist.  194,  16  North.  289. 

Testatrix  after  disposing  of  her  household  personal  property  devised 
all  the  rest,  residue  and  remainder  of  her  estate,  real,  personal  and  mixed, 
"to  all  my  children,  share  and  share  alike,  and  to  their  heirs  and  assigns 
forever,"  and  in  the  next  clause  appointed  a  son  and  daughter  as  ex- 
ecutors giving  them  authority  "to  execute  deed  for  my  property."  Held, 
(i)  the  gift  in  the  residuary  clause  was  an  absolute  gift  to  the  testatrix's 
children  not  cut  down  or  abrogated  by  the  "authority  to  execute  deed" 
subsequently  granted  to  her  executors,  and  (2)  the  executors  cannot 
alone  convey  a  good  marketable  title  in  fee  simple  to  testatrix's  real 
estate.  ENDUCH,  P.  J.,  held :  "The  question  involved  in  this  case  stated 
arises  upon  the  will  of  Elizabeth  Eisenbise,  who  was  the  owner  of  the 
house  and  lot  No.  311  North  Front  Street,  in  the  city  of  Reading,  and 
who  died  August  31,  1920,  leaving  a  will.  In  it,  after  bequeathing  to  her 
daughter,  Annie  Eisenbise,  all  her  'household  furniture  and  personal 
property'  (i.  e.,  all  her  household  personal  property),  the  testatrix 
proceeds  as  follows : 

"  'As  to  all  the  rest,  residue  and  remainder  of  my  estate,  real,  personal 
and  mixed,  I  give,  devise  and  bequeath  to  all  my  children  share  and 
share  alike,  and  to  their  heirs  and  assigns  forever. 

"  'I  hereby  appoint  my  son,  Peter  W.  Eisenbise,  and  my  daughter,  Annie, 
to  be  the  executors  of  this,  my  last  will  and  testament,  and  give  them 
authority  to  execute  deed  for  my  property.' 

"The  first  of  these  clauses  clearly  imports  an  absolute  gift  to  the  testa- 
trix's children.  Such  a  gift,  it  is  settled  by  many  decisions,  is  not  to  be 
treated  as  cut  down  or  abrogated  by  a  subsequent  provision  not  equally 
clearly  and  necessarily  manifesting  a  purpose  so  to  do:  Hiestand  v. 
Meyer,  150  Pa.  501,  505;  Yost  v.  Ins.  Co.,  179  id.  381;  Ault  v.  Karch, 
220  Id.  366;  Moyer  v.  Rentschler,  231  Id.,  620,  622;  Pattin  v.  Scott, 
270  Id.  49,  51.  Here  the  absolute  gift  to  the  children  is  followed  by  an 
'authority  to  execute  deed'  for  the  testatrix's  property.  Such  a  pro- 
vision may  vest  in  the  executors  the  estate  in  the  land  as  fully  as  if  it 
were  devised  to  them  to  be  sold :  Shippen's  Adm'r.  v.  Clapp,  36  Pa.  89. 
The  Fiduciaries  Act  7  June,  1917,  Section  28  (a),  P.  L.  497  provides 
that: 

"  'The  executors  of  the  last  will  of  any  decedent,  to  whom  is  given  thereby 
a  naked  authority  only  to  sell  any  real  estate,  shall  take  and  hold  the  same 
interests  therein,  and  have  the  same  power  and  authorities  over,  such 
estate  for  all  purposes  of  sale  and  conveyance  and  also  of  remedy  by 
entry,  by  action,  or  otherwise,  as  if  the  same  had  been  thereby  devised 
to  them  to  be  sold,  saving  always  to  every  testator  the  right  to  direct 
otherwise.' 

"The  power  thus  created,  however,  is  one  which,  in  the  absence  of  ex- 
press direction  to  sell,  arises  by  implication  from  a  confusion  of  realty 
and  personalty,  in  the  testator's  direction  to  his  executors  to  convert  and 


378  FIDUCIARIES  ACT— SECTION  28  (a),  (&),  (c) 

distribute:  see  Myers'  App.  62  Pa.  104,  107;  Gray  v.  Henderson,  71  Id. 
368,  and  therefore  can  hardly  be  regarded  as  standing  upon  the  same 
plane  with  the  preceding  gift  to  the  children  in  point  of  clearness, 
necessity  and  absoluteness.  Manifestly,  where  a  testator  makes  a  pro- 
vision contrary  to  the  effect  of  the  statute  and  fails  to  supersede  it  by 
another  capable  of  overcoming  it,  he  must  be  deemed  to  'direct  otherwise' 
within  the  meaning  of  the  enactment  above  quoted. 

"Our  conclusion  is  that  the  later  direction  does  not  abrogate  the  pre- 
ceding one;  that  under  the  will  of  Elizabeth  Eisenbise,  the  plaintiffs, 
executors,  could  not  alone  convey  a  good  marketable  title  in  fee  simple 
to  said  premises  to  the  defendants;  and  that  therefore — 

"Under  the  case  stated,  judgment  is  to  be  entered  for  the  defendants 
and  against  the  plaintiffs  for  the  sum  of  $400,  with  interest  from  October 
21,  1920,  and  costs  of  suit."  Eisenbise's  Executors  v.  Lebo,  13  Berks  308. 

492.  PRIVATE  SALES,  CONVEYANCES  OR  LEASES 

AUTHORIZED. 

(&)  All  powers  to  sell  or  let  real  estate  on  ground  rent,  con- 
tained in  any  will,  shall  be  deemed  and  taken  to  authorize  sales, 
conveyances  or  leases,  either  public  or  private,  unless  expressly 
restricted  by  the  said  instrument  to  one  or  the  other  mode. 

NOTE. — This  is  a  part  of  Section  i  of  the  Act  of  March  14,  1849,  P.  L. 
164,  4  Purd.  4924.  After  "any  will,"  the  words  "hereafter  executed"  are 
omitted.  The  remainder  of  the  section  relates  to  powers  contained  in 
deeds  or  other  instruments  and  to  private  sales  or  leases  made  before  the 
passage  of  the  act. 

Section  2  of  the  Act  of  March  14,  1850,  P.  L.  195,  i  Purd.  376,  also 
validated  private  sales  and  leases  theretofore  made. 

493.  POWERS    NOT    GIVEN   TO   ANY   PERSON   BY 

NAME  OR  DESCRIPTION  DEEMED  TO  BE 
GIVEN  TO  EXECUTORS,  BUT  TO  BE  EXER- 
CISED UNDER  CONTROL  OF  THE  ORPHANS' 
COURT. 

(c)  All  powers,  authorities  and  directions,  relating  to  real  es- 
tate, contained  in  any  last  will,  and  not  given  to  any  person  by 
name  or  by  description,  shall  be  deemed  to  have  been  given  to  the 
executors  thereof ;  but  no  such  power,  authority  or  direction  shall 
be  exercised  or  carried  into  effect  by  them,  except  under  the  con- 
trol and  direction  of  the  orphans'  court  having  jurisdiction  of  their 
accounts,  and  after  the  entry  of  security  if  the  court  shall  so  direct. 

NOTE. — This  is  Section  12  of  the  Act  of  February  24,  1834,  P.  L.  73, 
i  Purd.  1098,  which  corresponded  to  Section  13  of  the  Commissioners' 
Draft.  This,  and  the  two  following  sections  of  that  draft,  were  digested 
from  the  Acts  of  March  31,  1792,  Section  4,  3  Sm.  L.  66,  and  March  12, 
1800,  3  Sm.  L.  433- 


FIDUCIARIES  ACT— SECTION  28  (<r),  (rf)  379 

The    previous    law    was    stated    in    Lloyd    v.    Taylor,    2    Dallas    223, 
i  Yeates  422. 
The  words  at  the  end,  beginning  with  "and  after  the  entry"  are  new. 

The  orphans'  court  has  no  jurisdiction  under  this  section  of  the  Fidu- 
ciaries Act  to  grant  an  order  of  sale  of  real  estate  when  the  testator 
merely  provides  that  he  requests  his  estate  to  be  divided  in  equal  shares 
between  his  children  living;  and  further  provides  that  the  executor  shall 
collect  all  his  accounts  and  other  specific  personal  property  and  divide  the 
same.  Faus'  Est,  50  Pa.  C.  C.  342. 

494.  POWERS  OF  SURVIVING,  ACTING,  OR  RE- 
MAINING EXECUTORS,  OR  ADMINISTRA- 
TORS C.  T.  A.  AS  TO  REAL  ESTATE. 

(d)  In  all  cases  wherein  testators  shall  have  devised  their  real 
estate,  or  any  part  thereof,  to  their  executors  to  be  sold,  or  shall 
have  authorized  or  directed  such  executors  to  sell  and  convey  such 
real  estate,  or  shall  have  directed  such  real  estate  to  be  sold  without 
naming  or  declaring  who  shall  sell  the  same,  if  one  or  more  of 
such  executors  shall  die,  refuse,  renounce,  or  be  dismissed  or  dis- 
charged, it  shall  be  lawful  for  the  surviving,  acting  or  remaining 
executor  or  executors,  or  for  the  administrator  or  administrators 
with  the  will  annexed,  if  such  there  be,  to  bring  action  for  the  re- 
covery of  possession  of  such  real  estate,  and  against  trespassers 
thereon,  to  sell  and  convey  such  real  estate,  or  manage  the  same 
for  the  benefit  of  the  persons  interested  therein,  and  otherwise 
act  respecting  the  same,  as  fully  and  completely  as  he  or  they,  to- 
gether with  such  dying,  refusing,  renouncing,  dismissed  or  dis- 
charged co-executor  or  co-executors,  would  be  empowered  to  do, 
if  there  had  been  no  death,  refusal,  renunciation,  dismissal  or  dis- 
charge, or,  in  the  case  of  an  administrator  with  the  will  annexed, 
as  fully  and  amply  as  if  all  the  executors  named  in  the  will  had 
joined  therein:  Provided,  That  nothing  in  this  clause  shall  be 
deemed  or  taken  to  prevent  any  testator  from  directing,  by  his 
last  will  and  testament,  otherwise  than  is  herein  declared  and  en- 
acted. 

NOTE. — This  is  a  combination  of  the  provisions  of  Sections  I  to  5,  in- 
clusive, of  the  Act  of  March  12,  1800,  3  Sm.  L.  433,  I  Purd.  1097-1098. 

It  is  recommended  that  this  be  substituted  for  Section  14  of  the  Act  of 
1834,  i  Purd.  1099,  which  was  derived  from  the  Act  of  1800,  but  is  not 
so  complete. 

It  would  seem  that,  in  spite  of  the  Act  of  1834,  the  Act  of  1800  is  now 
in  force.  See  Section  8  of  the  Act  of  April  22,  1856,  P.  L,.  532 ;  Ross  v. 
Barclay,  18  Pa.  179;  Bell's  Appeal,  66  Pa.  498. 


380  FIDUCIARIES  ACT— SECTIONS  29-30 

495.  FIDUCIARIES      MAY      MAKE      CONVEYANCE 

THROUGH  ATTORNEYS. 

SECTION  29.  Any  fiduciary  with  power  to  convey  lands  or  tene- 
ments in  this  commonwealth,  may  make  conveyance  under  such 
power  by  and  through  an  attorney  or  attorneys  duly  constituted, 
and  such  conveyances  shall  be  of  the  same  validity  as  if  executed 
personally  by  the  constituent ;  and  all  conveyances  so  heretofore 
bona  fide  made  by  such  fiduciaries  are  hereby  confirmed:  Pro- 
vided, That  nothing  herein  contained  shall  authorize  any  fiduciary 
to  delegate  to  others  the  discretion  vested  in  himself  for  the  gen- 
eral management  of  his  trust. 

NOTE. — This  is  Section  i  of  the  Act  of  March  14,  1850,  P.  L.  195,  I  Purd. 
376,  except  that  "fiduciary"  has  been  substituted  for  "trustee,  executor  or 
other  persons  acting  in  a  fiduciary  character." 

This  section  of  the  Act  of  1850  seems  to  apply  to  other  fiduciaries  than 
those  included  in  the  present  act,  and  should  not  be  generally  repealed. 
Section  2  of  the  Act  of  1850,  i  Purd.  376,  relates  to  the  authority  of 
agents  or  attorneys  in  fact,  and  does  not  belong  in  the  present  act. 

496.  PURCHASERS    OF   REAL   ESTATE   FROM   EX- 

ECUTORS OR  TRUSTEES  NOT  BOUND  TO 
SEE  TO  THE  APPLICATION  OF  THE  PUR- 
CHASE MONEY. 

SECTION  30.  Whenever  any  person  seized  of  real  estate  situated 
in  this  commonwealth  has  died  or  shall  die,  having  first  made  and 
published  his  last  will  and  testament,  wherein  said  real  estate  is 
devised  to  executors  or  trustees  named  therein  in  trust  to  make 
sale  thereof,  or  wherein  the  sale  of  real  estate  is  authorized  or 
directed  but  no  person  is  designated  to  make  such  sale,  and  the 
executors  have  complied  with  the  provisions  of  Section  28,  clause 
(c),  of  this  act,  or  wherein  said  executors  or  trustees  are  author- 
ized to  make  sale  of  said  real  estate,  convert  the  same  into  money, 
and  distribute  the  proceeds  of  such  sale  or  sales,  or  any  part 
thereof,  or  hold  the  same  in  trust  for  any  particular  purpose,  or 
for  the  use  of  any  particular  person  or  persons  named  in  said  last 
will  and  testament,  the  person  or  persons  purchasing  the  real  estate 
so  sold  from  the  executors  or  trustees  named  in  said  last  will  and 
testament,  under  the  power  of  sale  or  direction  to  sell  contained 
therein,  shall  take  title  thereto  free  and  discharged  of  any  obliga- 
tion to  see  to  the  application  of  the  purchase  money. 

NOTE. — This  is  Section  i  of  the  Act  of  June  10,  1911,  P.  L.  874,  7  Purd. 
7703.  Section  2  of  that  act  is  merely  a  repealer. 


FIDUCIARIES  ACT— SECTION  30  381 

The  changes  are,  to  make  the  section  include  cases  where  sale  is  author- 
ized or  directed  but  no  one  is  designated  to  make  the  sale,  and  cases 
where  the  sale  is  merely  for  the  purpose  of  distribution. 

So  far  as  sales  under  testamentary  powers  are  concerned,  Section  19  of 
the  Act  of  February  24,  1834,  I  Purd.  1122,  providing  for  payment  of  pur- 
chase money  into  court,  is  superseded  by  the  Act  of  1911,  and  is  now  rec- 
ommended for  repeal. 

Section  30  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  makes  no 
change  in  the  law  as  it  previously  existed  with  respect  to  the  lien  of  gen- 
eral debts  against  a  decedent's  real  estate  where  a  discretionary  power  to 
sell  is  given  as  mentioned  in  the  act. 

It  was  not  the  intention  of  this  section  to  change  the  course  of  dev- 
olution nor  to  break  the  current  of  descent  by  holding  that  a  conversation 
took  place  from  the  moment  of  the  testator's  death,  under  a  mere 
authority  in  the  will  to  sell  realty. 

Nor  did  it  intend  to  take  away  from  general  creditors  the  land  as 
security  for  the  payment  of  debts.  It  still  remained  such  security  and 
the  lien  of  general  debts  attach  thereto,  but  such  debts  will  be  discharged 
not  only  by  judicial  sale,  but  also  by  sale  under  the  discretionary  power 
of  sale  contained  in  the  will. 

"Since  the  passage  of  the  Act  of  1917,  if  the  sale  related  back  to  the 
date  of  testator's  death,  these  debts  would  not  be  liens  on  the  real  estate; 
yet  the  land  has  passed  as  land.  There  was  no  conversion,  and,  while  all 
the  property  of  the  testator  was  liable  for  the  testator's  debts,  the  real 
estate  was  only  liable  within  the  year,  unless  the  claim  had  been  duly  in- 
dexed and  suit  brought;  but  if  the  Act  of  1917  intended  to  wipe  out  the 
line  of  general  debts  on  real  estate  and  another  act  states  that  such  debts 
can  be  collected  from  funds  derived  from  the  sale  of  such  real  estate, 
only  as  such  debts  are  proceeded  on  in  a  certain  way,  as  we  have  indicated, 
we  are  legislating  land  away  from  the  reach  of  creditors  when  we  hold 
that  the  lien  act  cannot  be  put  in  operation  because  general  debts  are 
not  liens  under  the  Act  of  1917,  and  we  close  the  door  against  recovering 
these  debts  from  the  real  estate  of  the  testator;  except  possibly  as  the 
executor  might  within  the  year  petition  for  an  order  of  sale  for  the  pay- 
ment of  debts.  To  prevent  such  an  inequitable  conclusion,  so  much  out 
of  harmony  with  all  the  law,  we  follow  Judge  BELL'S  advice  in  Cadbury 
v.  Duval,  10  Pa.  265,  270 :  'Legislative  enactments  are  to  be  expounded 
as  near  to  the  use  and  reason  of  the  prior  law  as  may  be,  when  this  can 
be  done  without  violation  of  its  obvious  meaning;  for,  say  the  cases,  it  is 
not  to  be  presumed  the  legislature  intended  to  make  any  innovation  upon 
the  common  law,  further  than  the  case  absolutely  requires.' 

"From  an  examination  of  the  will  before  us,  it  apparently  comes  within 
the  terms  of  Section  30.  Not  only  is  there  an  authority  to  convert  to 
sell,  but  also  a  direction  to  pay  debts.  This  is  nothing  less  than  an  author- 
ity to  convert  into  money  and  distribute.  The  will  also  directs  the  execu- 
trix to  pay  'to  my  father  and  mother  *  *  *  jointly,  and  after  the  death 
of  either  to  the  survivor,  the  sum  of  seventy-five  dollars  each  and  every 
month;'  the  sum  necessary  for  this  purpose,  if  computed  on  an  interest- 
bearing  investment,  would  exceed  the  purchase  price  named  in  the  con- 


382  FIDUCIARIES  ACT— SECTIONS  30-31 

tract  of  sale.  The  money,  therefore,  would  be  held  'in  trust  *  *  *  for 
the  use  of  any  person'  named  in  the  last  will  and  testament  It  follows, 
therefore,  that  the  sale  by  the  executrix  would  be  made  under  a  will  con- 
trolled by  this  act  The  purchaser  not  being  required  to  see  to  the  appli- 
cation of  the  proceeds  of  sale  would  take  the  property  free  of  the  lien  of 
general  debts:  Piper  v.  Doran,  (164  Pa.  430)  ;  and,  with  the  explanation 
here  given,  the  judgment  of  the  court  below  is  affirmed."  KEPHAKT,  J.,  in 
Davidson  v  Bright,  267  Pa.  580,  no  Atl.  301. 

497.  LEASES  OF  REAL  ESTATE  BY  TESTAMEN- 
TARY TRUSTEES  AND  GUARDIANS. 

SECTION  31.  Unless  it  be  otherwise  provided  by  the  will,  any 
testamentary  trustee  shall  have  power  to  make  a  lease  of  real  es- 
tate included  in  the  trust  for  a  term  not  exceeding  five  years,  and 
any  guardian  shall  have  power  to  make  a  lease  of  real  estate  be- 
longing to  his  ward  for  a  term  not  exceeding  five  years  that  shall 
expire  before  the  minor,  if  living,  would  attain  his  majority.  If 
any  testamentary  trustee  or  guardian  shall  deem  it  advisable  to 
make  such  lease  for  a  longer  period  than  aforesaid,  the  orphans' 
court  of  the  county  wherein  such  real  estate  shall  be  situated,  on 
the  application  of  such  trustee  or  guardian,  being  aided  where  nec- 
essary by  the  report  of  a  master,  may  authorize  such  trustee  or 
guardian  to  lease  such  real  estate,  on  such  terms  and  conditions, 
at  such  rental,  and  for  such  period,  as  shall  appear  just  and  equi- 
table to  said  court,  with  the  same  force  and  effect  as  though  said 
lease  were  made  by  the  beneficial  owner  or  owners  and  he  or  they 
were  sui  juris  and  owned  the  property  in  fee.  In  all  cases  where 
such  application  shall  be  approved  by  any  orphans'  court,  the  court 
may  direct  said  trustee  or  guardian,  before  making  such  lease,  to 
file  his  bond  in  said  court,  in  such  sum  as  the  court  shall  direct,  and 
with  good  and  sufficient  corporate  security,  or  with  two  good  and 
sufficient  individual  sureties,  approved  by  said  court,  conditioned 
for  the  faithful  application  or  payment  by  him  of  all  rents  to  be 
received  under  said  lease:  Provided,  That  where  such  trustee 
or  guardian  shall  be  a  corporation,  duly  authorized  by  law,  the 
court  may,  in  lieu  of  security  as  aforesaid,  permit  such  corpora- 
tion to  enter  its  own  bond  without  surety. 

NOTE. — This  is  a  new  section.  Its  form  somewhat  resembles  that  of  the 
local  Act  of  March  18,  1869,  P.  L.  409,  l  Purd.  1088,  relating  only  to 
leases  by  guardians  of  mineral  lands  in  Mercer  county. 

The  existing  law  leaves  the  power  of  a  trustee  to  make  leases  beyond 
the  lifetime  of  the  beneficiary  extremely  doubtful :  Craig's  Estate,  24  D. 
R.  851.  The  proposed  section  gives  express  power  to  make  leases  for 


FIDUCIARIES  ACT— SECTIONS  31-32  (a)  383 

five  years  and  provides  a  method  of  obtaining  authority  to  make  longer 
leases. 

See  forms  77,  78. 

A  testator  devised  his  real  estate  in  trust  for  his  wife,  for  life,  and  on 
her  death  to  set  aside  out  of  the  income  of  the  real  estate,  or  from  the 
proceeds  from  sale  thereof,  an  undefined  sum,  sufficient  to  pay  the  rent 
for  all  time  of  a  pew  in  a  certain  church  as  a  memorial  to  himself.  Dur- 
ing the  lifetime  of  the  cestui  que  trust  the  trustees  leased  the  premises 
for  a  period  of  ten  years  from  Jan.  i,  1909;  this  lease  was  renewed  for 
nine  years  at  a  rental  of  $25,000  per  annum.  Afterwards  the  trustees  pre- 
sented a  petition  to  the  orphans'  court,  under  Section  31  of  the  Fiduciaries 
Act  of  June  7,  1917,  P.  L.  447,  praying  for  leave  to  execute  lease  to  another 
party  for  a  term  of  ten  years  from  Jan.  i,  1928.  The  equitable  life  tenant 
acquiesced  in  this  petition  but  the  cestui  que  trust  in  remainder  objected, 
and  one  of  the  heirs  at  law  .also  objected,  on  the  ground  that  the  trust 
after  the  present  life  estate  was  void;  held,  that,  as  there  was  no  fund 
before  the  court  for  distribution,  no  question  as  to  the  ultimate  distribution 
of  the  corpus  arose  until  after  the  termination  of  the  life  estate;  there- 
fore, no  matter  how  desirable  the  lease  might  be  from  the  standpoint  of 
the  trustee,  or  that  of  the  life  tenant,  since  it  was  opposed  by  the  cestui 
que  trust  in  remainder  and  by  the  heir  at  law  and  as  the  time  when  they 
would  have  the  legal  right  to  present  their  claims  was  uncertain,  the  court 
should  not  prematurely  make  any  decree  decisive  of  their  rights  or  any 
decree  which  might  in  any  way  imperil  them;  and  as  a  ten-year  lease  on 
top  of  one  which  had  nine  years  to  run  might  imperil  them,  the  prayer  of 
the  petition  was  refused.  Archambault's  Est.,  29  Dist.  77. 

498.  ELECTIONS  BY  GUARDIANS  OR  TRUSTEES,— 
ELECTION  TO  TAKE  REAL  ESTATE  IN  LIEU 
OF  PROCEEDS. 

SECTION  32.  (a)  Whenever,  by  the  provisions  of  any  last  will 
and  testament  admitted  to  probate  in  any  county  of  this  common- 
weath,  any  of  the  real  estate  of  the  testator  is  ordered  or  directed 
to  be  sold  and  the  proceeds  therefrom  are  bequeathed,  or  are  pay- 
able or  distributable,  in  whole  or  in  part,  to  any  minor  or  minors, 
or  cestuis  que  trust,  and  it  is  the  desire  of  all  the  legatees  and 
beneficiaries  interested  in  said  proceeds  to  elect  to  take  said  real 
estate,  in  lieu  of  the  several  bequests  or  legacies  or  interests,  it 
shall  be  lawful  for  the  orphans'  court  having  jurisdiction  of  the 
accounts  of  the  executor  of  said  will,  upon  the  petition  of  any 
fiduciary  interested,  to  authorize  and  empower  said  fiduciary,  on 
behalf  of  his  ward  or  cestui  que  trust,  to  enter  into  an  election  in 
writing,  to  take  said  real  estate  or  part  thereof  in  fee,  in  lieu  of 
the  legacy  or  legacies,  interest  or  interests,  bequeathed  or  payable 
or  distributable  as  aforesaid,  taking  and  being  entitled  to  an  estate 


384  FIDUCIARIES  ACT— SECTION  32  (a),  (&) 

in  said  real  estate  commensurate  with  the  interest  said  minor  or 
cestui  que  trust  would  have  had  in  the  fund  derived  from  the  sale 
of  said  real  estate,  if  the  same  had  been  sold  in  accordance  with 
the  provisions  of  said  will.  Such  election  shall  be  duly  acknowl- 
edged and  recorded  in  the  deed  book  in  the  office  of  the  recorder 
of  deeds  for  the  county  in  which  such  real  estate  is  situated,  and 
shall  be  indexed  by  the  recorder  in  the  grantors'  index  under  the 
name  of  the  decedent,  and  in  the  grantees'  index  under  the  name 
of  the  ward  or  cestui  que  trust,  the  charges  for  recording  to  be 
the  same  as  are  provided  by  law  for  similar  services,  and  shall 
then  be  filed  in  the  office  of  the  clerk  of  said  orphans'  court. 

NOTE. — This  is  Section  i  of  the  Act  of  July  22,  1913,  P.  L.  908,  5  Purd. 
5888,  extended  to  cover  all  cases  of  cestuis  que  trust,  as  well  as  minors, 
and  altered  by  transposing  the  language  for  the  sake  of  clearness,  and 
by  making  some  verbal  changes  not  affecting  the  substance. 

Testator  by  his  will  directed  a  conversion  of  his  land  without  limit  of 
time  within  which  the  conversion  should  be  effected.  At  the  time  when 
the  actual  conversion  of  the  estate  was  to  occur,  certain  persons  named  in 
the  will  were  to  take  the  interests  therein  set  forth,  some  of  whom  were 
to  have  absolute  estates,  and  one  an  estate  in  trust,  and,  until  conversion 
all  of  the  cestuis  que  trustent  were  to  receive  the  income  from  the  corpus 
absolutely,  except  one  son,  to  whom  a  share  of  the  income  was  given  in 
part,  and  in  part  to  a  trust  created  for  him  for  the  support,  maintenance 
and  education  of  his  family.  A  petition  was  filed  by  the  trustee  for  this 
interest,  praying  for  an  order  of  court  authorizing  and  empowering  it  to 
join  with  those  who  were  sui  juris  in  an  election  to  take  the  decedent's 
estate  as  land  by  virtue  of  Section  32  (a)  of  the  Fiduciaries  Act  of  1917 
was  granted.  Bennett's  Est.,  67  P.  L.  J.  363,  20  Lack.  142. 

499.  ELECTION  TO  TAKE  MONEY  INSTEAD  OF 
REAL  ESTATE  IN  WHICH  IT  IS  DIRECTED 
TO  BE  INVESTED. 

(b)  Whenever,  by  the  provisions  of  any  last  will  and  testament 
admitted  to  probate  in  any  county  of  this  commonwealth,  money 
is  directed  to  be  laid  out  or  invested  in  real  estate,  for  the  use  of 
any  minor  or  minors,  or  cestuis  que  trust,  and  it  is  the  desire  of 
all  the  beneficiaries  interested  to  elect  to  take  said  money  instead 
of  the  real  estate,  it  shall  be  lawful  for  the  orphans'  court  having 
jurisdiction  of  the  accounts  of  the  executor  of  said  will,  upon 
petition  of  any  guardian  or  trustee  interested,  to  authorize  and 
empower  said  guardian  or  trustee,  on  behalf  of  his  ward  or  cestui 
que  trust,  to  enter  into  an  election  in  writing,  which  shall  be  filed 
in  the  office  of  the  clerk  of  said  court,  to  take  said  money  in  lieu 


FIDUCIARIES  ACT— SECTIONS  32  (&),    (c)-33  (<»)  385 

of  the  real  estate,  taking  and  being  entitled  to  an  interest  in  said 
money  commensurate  with  the  estate  said  minor  or  cestuis  que 
trust  would  have  had  in  the  real  estate  if  the  same  had  been  pur- 
chased in  accordance  with  the  provisions  of  said  will. 

NOTE. — This  is  a  new  clause,  introduced  to  cover  the  converse  of  the 
case  provided  for  in  clause  (a). 

500.  VALIDATION  OF  PREVIOUS  ELECTIONS. 

(c)  All  elections  to  take  real  estate  in  lieu  of  legacies  or  in- 
terests, or  money  instead  of  real  estate,  heretofore  made  by  any 
guardian  or  trustee  pursuant  to  an  order  of  any  orphans'  court  in 
this  commonwealth,  are  hereby  ratified,  confirmed  and  validated. 

NOTE. — This  is  Section  2  of  the  Act  of  July  22,  1913,  P.  L.  908,  5  Purd. 
5888,  with  some  verbal  changes  and  the  addition  of  words  to  cover 
clause  (6). 

501.  PROCEDURE    WHERE    REAL    ESTATE    IS    DE- 

VISED AT  AN  APPRAISEMENT  TO  BE  MADE 
OR  TO  EXECUTOR  AT  A  VALUATION,— 
JURISDICTION ;  PETITION. 

SECTION  33.  (a)  Whenever,  in  any  last  will  and  testament,  the 
testator  has  directed  or  shall  direct  all  or  any  part  of  his  real 
estate  to  be  appraised  and  sold,  or  has  devised  or  shall  devise 
such  real  estate  to  any  person  or  persons  at  an  appraisement  to 
be  made,  or  has  given  or  shall  give  to  any  person  or  persons  the 
right  to  take  such  real  estate  at  an  appraisement  directed  by  the 
testator  to  be  made  but  has  not  indicated  or  shall  not  indicate  by 
whom  such  appraisement  shall  be  made,  it  shall  be  lawful  for  any 
of  the  parties  interested  in  such  real  estate  or  in  the  sum  to  be 
paid  therefor  to  apply,  by  petition,  to  the  orphans'  court  of  the 
county  in  which  said  real  estate  is  situated,  or,  in  case  the  real 
estate  is  divided  by  a  county  line,  in  the  county  where  the  mansion 
house  may  be  situated,  or,  if  there  be  no  mansion  house,  in  the 
county  where  the  principal  improvements  may  be,  or,  if  there  be 
no  improvements,  in  either  county,  setting  forth  the  terms  and 
character  of  such  devise  or  direction  of  the  testator,  and  also  the 
names  and  residences,  when  known,  of  all  parties  interested. 

NOTE. — This  is  Section  i  of  the  Act  of  April  17,  1869,  P.  L.  72,  i  Purd. 
1124,  altered  in  phraseology  and  by  providing  that  the  petition  may  be  by 
persons  interested  in  the  sum  to  be  paid  for  the  real  estate. 
25 


386  FIDUCIARIES  ACT— SECTION  33  (&),   (O,   (<0 

502.  APPOINTMENT  OF  APPRAISERS— NOTICE. 

(b)  Upon  the  presentation  of  such  petition,  said  court  shall 
appoint  two  or  more  disinterested  and  competent  persons,  citi- 
zens of  the  county,  to  make  such  appraisement,  unless  the  testator 
has  designated  the  number  of  persons  to  make  such  appraise- 
ment, in  which  case,  the  court  shall  appoint  the  number  of  per- 
sons so  designated;    and  the  court  shall,  by  general  rule  or  by 
special  order  in  the  particular  case,  provide  for  notice  to  be  given 
to  all  parties  interested  of  the  time  and  place  of  making  such 
appraisement. 

NOTE. — This  is  Section  2  of  the  Act  of  April  17,  1869,  P.  L.  72,  i  Purd. 
1124,  omitting  the  provision  for  the  award  of  an  inquest  directed  to  the 
sheriff,  and  the  provision  at  the  end  that  the  notice  shall  be  given  in  the 
same  manner  as  notice  is  required  to  be  given  in  partition  proceedings, 
and  substituting  "competent"  for  "judicious"  in  line  2. 

503.  OATH  AND  COMPENSATION  OF  APPRAISERS. 

(c)  The  appraisers  so  appointed  shall  be  sworn  or  affirmed, 
well  and  truly  and  without  prejudice  or  partiality,  to  value  and 
appraise  such  real  estate;    and  each  of  such  appraisers  shall 
receive,  as  compensation  for  his  services,  such  amount  as  may  be 
allowed  by  said  court,  such  compensation  to  be  paid  out  of  the 
estate  of  the  decedent,  as  part  of  the  costs  of  administration. 

NOTE.— This  takes  the  place  of  Section  5  of  the  Act  of  1869,  i  Purd. 
1124,  which  provides  that  the  appraisers  "shall  be  duly  qualified  by  the 
sheriff  well  and  truly,"  etc.,  and  of  Section  6  which  provides  that  the 
sheriff  and  appraisers  shall  receive  the  same  fees  as  are  allowed  in  cases 
of  partition  in  the  orphans'  court. 

504.  RETURN  AND  CONFIRMATION  OF  APPRAISE- 

MENT; APPEALS. 

(rf)  The  appraisement  so  made  shall  be  returned  to  the  said 
orphans'  court  and,  if  confirmed  by  said  court,  shall  be  con- 
clusive on  all  the  parties  interested  in  said  real  estate,  unless  an 
appeal  be  taken  from  such  decree  of  confirmation  to  the  proper 
appellate  court  within  six  months  after  the  date  thereof. 

NOTE.— This  is  Section  3  of  the  Act  of  April  17,  1869,  P.  L.  72,  I  Purd. 
1124,  the  period  for  appeal  having  been  changed  from  three  months  to 
six,  the  usual  period.  The  phraseology  has  also  been  modified  so  as  to 
make  it  clear  that  a  decree  of  confirmation  is  to  be  entered. 


FIDUCIARIES  ACT— SECTION  33  (*)  387 

505.  CITATION  TO  ACCEPT  OR  REFUSE;  DECREE 
ADJUDGING  REAL  ESTATE  TO  DEVISEE  OR 
TO  OTHER  PERSONS;  RECORDING  AND 
REGISTRY  OF  DECREE. 

(e)  Upon  the  return  and  confirmation  of  such  appraisement, 
the  court  shall  issue  its  citation  to  the  person  or  persons  entitled 
to  take  such  real  estate  on  compliance  with  the  terms  of  the  will, 
to  appear  at  a  time  fixed  by  said  court  to  accept  or  refuse  the 
same.  If,  upon  the  return  of  such  citation,  duly  served,  such 
person  or  persons  shall  appear  and  accept  such  real  estate  at  the 
appraisement,  and  shall  pay  or  secure  the  payment  of  the  amount 
thereof  at  such  time  and  upon  such  terms  as  shall  be  fixed  by 
said  court,  then  the  court  shall  adjudge  such  real  estate  to  such 
person  or  persons.  If  such  person  or  persons  shall  fail  or  neglect 
to  appear  and  accept  such  real  estate  at  the  appraisement  or  shall 
refuse  to  accept  it,  or,  having  accepted,  shall  fail  to  pay  or  secure 
the  amount  of  such  appraisement  as  aforesaid,  then  the  court 
shall  adjudge  such  real  estate  to  the  person  or  persons  entitled 
thereto  under  the  provisions  of  the  will  in  the  event  of  such  real 
estate  not  being  taken  at  the  appraisement  directed  by  the  testator, 
or,  if  the  will  contains  no  provision  for  such  event,  then  the 
court  shall  adjudge  such  real  estate  to  the  persons  legally  entitled 
thereto.  Any  such  decree  may  be  recorded  in  the  deed  book  in 
the  office  for  recording  deeds  of  any  county  in  which  such  real 
estate  is  situated,  with  the  same  effect  as  deeds  are  recorded,  and 
shall  be  indexed  by  the  recorder  in  the  grantors'  index  under  the 
name  of  the  decedent,  and  in  the  grantee's  index  under  the 
name  or  names  of  the  person  or  persons  accepting  such  real  estate 
at  the  appraisement,  or  of  the  person  or  persons  entitled  thereto 
in  the  event  of  such  real  estate  not  being  taken  at  the  appraise- 
ment, or  of  the  person  or  persons  legally  entitled  thereto  where 
the  will  contains  no  provision  for  a  failure  to  take  at  the  appraise- 
ment, as  the  case  may  be,  and  shall  be  registered  in  the  survey 
bureau,  or  with  the  proper  authorities  empowered  by  law  to  keep 
a  register  of  real  estate,  if  any  there  be,  in  said  county,  and  the 
charges  for  recording  and  registering  shall  be  the  same  as  are 
provided  by  law  for  similar  services. 

NOTE.— This  is  Section  4  of  the  Act  of  April  17,  1869,  P.  L.  72,  i  Purd. 
1124,  modified  so  as  to  provide  for  a  citation  and  to  cover  the  cases  of 
refusal  to  accept,  of  failure  to  pay  after  accepting,  and  of  failure  of  the 
will  to  provide  for  a  case  of  failure  to  take  at  the  appraisement.  The 
provision  for  recording  and  registering  is  new. 


388  FIDUCIARIES  ACT— SECTION  33  (/) 

506.     WHERE     REAL     ESTATE     IS      DEVISED     TO 
EXECUTOR  AT  A  VALUATION. 

(/)  In  all  cases  of  wills,  heretofore  or  hereafter  made  and 
duly  proved  and  recorded,  wherein  the  testator  has  given  or  shall 
give  the  right  to  one  or  more  persons  to  take  any  or  all  of  his 
real  estate  at  a  certain  valuation  therein  named,  and  has  appointed 
or  shall  appoint  such  person  or  persons  as  executor  or  executors, 
to  whom  letters  testamentary  are  issued,  such  person  or  persons 
may  present  his  or  their  petition  to  the  orphans'  court  of  the 
county  in  which  such  real  estate  is  situated,  or,  in  a  case  where 
the  real  estate  is  divided  by  a  county  line,  in  the  county  where 
the  mansion  house  may  be  situated,  or,  if  there  be  no  mansion 
house,  in  the  county  where  the  principal  improvements  may  be,  or 
if  there  be  no  improvements,  in  either  county,  setting  forth  the 
terms  and  character  of  such  devise  or  direction,  that  he  or  they 
have  been  appointed  executor  or  executors  of  the  will,  that 
letters  testamentary  have  been  issued  to  him  or  them,  and 
formally  accepting  such  real  estate  at  such  valuation.  Upon  the 
presentation  of  such  petition,  the  court  shall  have  power  to 
adjudge  the  real  estate  to  such  person  or  persons,  and  to  decree 
that  he  or  they  shall  account  for  the  valuation  thereof  in  the 
settlement  of  his  or  their  accounts  in  the  orphans'  court  having 
jurisdiction  of  such  accounts. 

NOTE. — This  is  Section  i  of  the  Act  of  March  5,  1903,  P.  L.  10,  i  Purd. 
1124,  with  some  changes  in  phraseology  for  the  purpose  of  condensation. 
In  the  next  to  the  last  line,  "in  the  orphans'  court"  has  been  substituted  for 
"with  the  register  of  wills." 

Where  a  testator  devises  his  real  estate  at  a  fixed  valuation  the  real 
estate  is  converted  and  the  estate  distributable  as  personalty. 

In  such  case  a  decree  under  the  Fiduciaries  Act  of  June  7,  1917,  Section 
33  (/)»  P-  L.  502,  adjudging  the  real  estate  to  the  devisee  and  executor  on 
his  petition  does  not  change  the  situation  but  is  simply  confirmatory  of  what 
the  will  has  accomplished  and  amplifies  the  evidence  of  title. 

A  voluntary  payment  of  the  debts  of  a  decedent  out  of  the  proceeds  of 
real  estate  on  which  they  had  lost  their  lien,  when  approved  by  all  parties, 
is  commendable  and  a  subsequent  reaction  against  such  payment  should 
not  be  favored. 

"The  devise  is  somewhat  analogous  to  an  executory  contract  for  the  sale 
of  real  estate  entered  into  by  a  testator  which  is  executed  after  his  death 
by  a  decree  of  specific  performance;  and  that  such  property  descends  as 
personalty  will  not  be  disputed.  No  transformation  happened  because 
the  devisee  chose  after  the  expiration  of  a  year  from  the  death  of  the 
testator  to  have  entered  a  decree  as  permitted  by  the  Fiduciaries  Act  of 
1917,  P.  L.  447,  Section  33  (/),  which  authorizes  the  orphans'  court  to  ad- 


FIDUCIARIES  ACT— SECTIONS  33  (/),  (0)-34  (<*)  389 

judge  real  estate  to  persons  to  whom  the  right  to  take  the  same  at  a  certain 
valuation  has  been  given  in  a  will,  and  who  are  appoinced  executors  of 
the  same  will.  By  virtue  of  this  enactment  a  devisee  for  a  consideration 
who  is  also  the  executor  may  petition  the  court  to  adjudge  the  real  estate 
to  him  which  had  been  devised  to  him  and  about  which  there  is  no  ques- 
tion or  uncertainty  as  to  its  title,  and  may  also  petition  the  court  to  have 
a  decree  entered  against  himself  ordering  himself  to  account  "for  the 
valuation  thereof"  from  which  he  could  not  escape  had  there  been  no 
such  decree.  The  act  is  simply  confirmatory  and  amplifies  the  evidence 
of  title.  It  only  supplements  its  publication.  The  will  is  the  essential 
demonstration,  and  by  it  was  the  title  vested  in  the  devisee  at  the  death 
of  the  testator."  Per  SMITH,  P.  J.,  in  Ruch's  Est,  37  Lane.  69. 

507.  VALIDATION  OF  PREVIOUS  DECREES. 

(g)  Whenever  any  orphans'  court  shall  have  heretofore  made 
a  decree  adjudging  real  estate  to  certain  persons,  in  any  case  men- 
tioned and  provided  for  in  clauses  (0)  and  (/)  of  this  section, 
such  decree  shall  be  valid  and  available  to  vest  in  the  person  or 
persons  to  whom  such  real  estate  was  adjudged,  all  the  right, 
title  and  interest  of  the  testator  who  had  died,  leaving  a  will 
wherein  the  right  to  accept  such  real  estate  was  given. 

NOTE.— This  is  Section  2  of  the  Act  of  March  5,  1903,  P.  L.  10,  i  Purd. 
1125. 

508.  DESIGNATION  OF  CURTILAGE  OR  BUILDING 

DEVISED,— JURISDICTION,— PETITION. 

SECTION  34.  (a)  Whenever,  by  any  last  will  and  testament,  any 
dwelling-house  or  other  building  is  devised  to  any  person  or  per- 
sons, without  defining  the  boundaries  of  the  curtilage  or  lot  ap- 
purtenant to  such  building  and  necessary  for  the  use  and  enjoy- 
ment of  the  same,  it  shall  be  lawful  for  any  of  the  parties  in- 
terested to  apply  by  petition  to  the  orphans'  court  of  the  county 
in  which  such  building  is  situate,  for  the  appointment  of  commis- 
sioners to  designate  the  boundaries  of  the  curtilage  or  lot  appurte- 
nant to  such  building,  and  necessary  for  the  convenient  use  of  the 
same,  for  the!  purposes  for  which  it  was  intended. 

NOTE. — This  is  Section  i  of  the  Act  of  April  14,  1868,  P.  L.  97,  3  Purd. 
3389,  revised  by  omitting  unnecessary  verbiage,  and  by  omitting  after 
"last  will  and  testament"  the  following  words :  "or  by  reservation  or  limita- 
tion in  any  deed  or  deeds  of  conveyance,  or  by  reservation  in  any  partition 
between  tenants  in  common  or  co-parceners,"  and  after  "devised,"  the 
words  "bequeathed,  reserved  or  limited."  The  word  "bequeathed"  is  in- 
appropriate ;  and  it  is  difficult  to  see  why  the  orphans'  court  should  have 
jurisdiction  in  cases  arising  under  deeds  or  amicable  partitions,  which 
have  nothing  to  do  with  decedents'  estates. 


390  FIDUCIARIES  ACT— SECTION  34  (a),  (6),  (c) 

In  the  seventh  line,  the  words  "by  petition"  have  been  substituted  for 
"in  writing." 

509.  APPOINTMENT  AND  COMPENSATION  OF  COM- 

MISSIONERS. 

(b)  It  shall  be  the  duty  of  the  said  court,  on  presentation  of 
such  petition,  to  appoint  two  or  more  disinterested  and  com- 
petent persons,  as  they  shall  think  proper,  for  the  purposes  afore- 
said, which  persons  shall  be  sworn  or  affirmed  faithfully  to  perform 
their  duties  as  commissioners,  and  shall  be  respectively  entitled 
to  receive  from  the  estate  of  the  testator,  for  their  services  as 
commissioners,  such  sum  as  the  said  court  shall  deem  proper. 

NOTE.— This  is  Section  2  of  the  Act  of  April  14,  1868,  P.  L.  97,  3  Purd. 
3390,  changed  so  as  to  provide  for  two  or  more  commissioners  instead  of 
three,  to  require  that  they  be  "disinterested  and  competent"  instead  of 
"competent  and  skilful,"  to  require  them  to  be  sworn  or  affirmed,  and  to 
leave  the  amount  of  their  compensation  to  the  judgment  of  the  court, 
instead  of  fixing  it  at  one  dollar  per  day. 

510.  NOTICE  OF  PROCEEDINGS   OF  COMMISSION- 

ERS; REPORT,  CONFIRMATION;  RECORD- 
ING AND  REGISTRY  OF  DECREE;  TITLE  OF 
DEVISEE. 

(c)  It  shall  be  the  duty  of  the  commissioners  so  appointed  to 
give  reasonable  notice  to  all  parties  interested  of  the  time  at  which 
they  will  examine  said  dwelling-house  or  other  building  for  the 
purposes  aforesaid,  and  to  make  report  to  the  court  in  pursuance 
of  the  order  to  them  directed.     In  such  report,  they  shall  suf- 
ficiently designate  and  describe,  by  metes  and  bounds,  with  their 
courses  and  distances,  and  by  draft,  if  necessary,  the  limits  and 
extent  of  ground  necessary  for  the  convenient  use  of  such  build- 
ing, for  the  purposes  for  which  it  was  intended.    If  such  report 
shall  be  approved  by  the  court,  a  decree  of  confirmation  shall  be 
entered,  a  certified  copy  whereof  shall  be  recorded  in  the  deed 
book  in  the  office  for  recording  deeds  of  the  county  in  which  said 
building  is  situate,  in  like  manner  as  deeds  are  recorded,  and  with 
the  same  effect,  and  shall  be  indexed  by  the  recorder  in  the 
grantors'  index   under  the  name   of  the  decedent,  and   in  the 
grantees'  index  under  the  name  of  the  devisee  of  such  dwelling- 
house  or  other  building,  and  shall  be  registered  in  the  survey 
bureau,  or  with  the  proper  authorities  empowered  by  law  to  keep 
a  register  of  real  estate,  if  any  there  be,  in  such  county,  upon  pay- 


FIDUCIARIES  ACT— SECTIONS  34  (c),  (d)-35  (<*)  391 

ment  of  fees  for  such  recording  and  registration  at  the  rates  fixed 
by  law  for  similar  services ;  and  the  devisee  of  such  building  shall 
take  the  same  estate  in  the  ground  thus  set  apart  as  is  devised  to 
him  in  the  building. 

NOTE. — This  is  Section  3  of  the  Act  of  April  14,  1868,  P.  L.  97,  3  Purd. 
3390,  with  some  changes  in  phraseology,  the  omission,  at  the  end,  of  the 
words  "reserved  or  limited,"  the  insertion  of  the  provisions  for  entry  of  a 
decree  of  confirmation  and  for  recording  and  registry,  and  a  change  in 
the  last  clause,  which  in  the  Act  of  1868,  reads  that  the  ground  "shall  be 
exclusive  property  of  the  occupant  of  such  dwelling  house  or  other  build- 
ing during  the  full  term  for  which  it  was  devised." 

511.  PAYMENT  OF  COSTS. 

(d)  All  costs  of  proceedings  under  this  section,  including  the 
fees  for  recording  and  registration,  shall  be  paid  out  of  the  estate 
of  the  testator  and  shall  be  considered  as  part  of  the  costs  of 
administration  of  the  estate. 

NOTE.— This  is  substituted  for  Section  4  of  the  Act  of  April  14,  1868, 
P.  L.  97,  3  Purd.  3390,  which  reads:  "The  costs  of  these  proceedings  shall 
be  equally  divided  between  all  parties  interested."  That  section  is  un- 
satisfactory since  "all  parties  interested"  is  indefinite  and  "equally"  is 
ambiguous. 

512.  ABATEMENT    AND    SURVIVAL    OF    ACTIONS; 

SUBSTITUTION  OF  EXECUTORS  AND  AD- 
MINISTRATORS; PLEADINGS  AS  TO  AS- 
SETS,—PERSONAL  ACTIONS,  EXCEPT  FOR 
SLANDER  AND  LIBEL  NOT  TO  ABATE. 

SECTION  35.  (a)  No  presonal  action  hereafter  brought,  except 
actions  for  slander  and  for  libels,  and  no  action  for  mesne  profits 
or  for  trespass  to  real  property,  shall  abate  by  reason  of  the 
death  of  the  plaintiff  or  the  defendant,  or  by  reason  of  the  death 
of  one  or  more  joint  plaintiffs,  or  defendants*  but  the  executor  or 
administrator  of  the  deceased  party  may  be  substituted  as  plaintiff 
or  as  defendant,  as  the  case  may  be,  and  the  suit  prosecuted  to 
final  judgment  and  satisfaction. 

NOTE. — This  and  the  following  clause  are  intended  to  cover  the  whole 
subject  of  abatement  and  survival  of  personal  actions,  and  to  include  the 
subject  matter  of  Section  28  of  the  Act  of  1834,  I  Purd.  mi;  Section  18 
of  the  Act  of  April  15,  1851,  P.  L.  674,  I  Purd.  1115;  the  Act  of  April  12, 
1869,  P.  L.  27,  I  Purd.  228,  relating  to  actions  for  mesne  profits  and  for 
trespass  to  real  or  personal  property;  and  Section  i  of  the  Act  of  June 
24,  1895,  P.  I,.  236,  4  Purd.  4824. 


392  FIDUCIARIES  ACT— SECTION  35  (a),  (&) 

Section  28  of  the  Act  of  1834  provides  that  executors  or  administrators 
may  "commence  and  prosecute  all  personal  actions  which  the  decedent 
whom  they  represent  might  have  commenced  and  prosecuted,  except 
actions  for  slander,  for  libels,  and  for  wrongs  done  to  the  person ; 
and  they  shall  be  liable  to  be  sued  in  any  action,  except  as  aforesaid,  which 
might  have  been  maintained  against  such  decedent  if  he  had  lived." 

Section  18  of  the  Act  of  1851  provides  that  no  action  "to  recover  'dam- 
ages to  the  person  by  negligence  or  default,  shall  abate  by  reason  of  the 
death  of  the  plaintiff;  but  the  personal  representatives  of  the  deceased  may 
be  substituted  as  plaintiff,  and  prosecute  the  suit  to  final  judgment  and 
satisfaction." 

Section  I  of  the  Act  of  1895  provides  that  any  right  of  action  "by 
reason  of  injury  wrongfully  done  to  the  person  of  another  shall  survive 
the  death  of  the  wrongdoer,  and  may  be  enforced  against  his  executor  or 
administrator  either  by  continuing  against  such  personal  representative 
a  suit  which  may  have  been  brought  against  the  wrongdoer  himself  in 
his  lifetime,  or  by  bringing  an  original  suit  against  his  representative  after 
his  death." 

The  Acts^  of  1851  and  1895  were  intended  to  amend  the  Act  of  1834  so 
as  to  eliminate  the  words  "for  wrongs  done  to  the  person."  There  has 
been  some  doubt  as  to  whether  the  Act  of  1895  refers  only  to  cases  of 
physical  injury  or  includes  such  wrongs  as  malicious  prosecution.  It 
seems  better  to  restate  the  provisions  of  the  law  so  as  to  make  them 
entirely  clear. 

1  Portion  in  italics  added  by  amendment  of  March  30,  1921  (P.  L.  55). 

513.  EXECUTORS  AND  ADMINISTRATORS  MAY  SUE 
AND  BE  SUED  IN  PERSONAL  ACTIONS,  EX- 
CEPT FOR  SLANDER  AND  LIBEL. 

(&)  Executors  or  administrators  shall  have  power  either  alone 
or  jointly  with  other  plaintiffs*  to  commence  and  prosecute  all 
actions  for  mesne  profits  or  for  trepass  to  real  property,  and  all 
personal  actions  which  the  decedent  whom  they  represent  might 
have  commenced  and  prosecuted,  except  actions  for  slander  and 
for  libels ;  and  they  shall  be  liable  to  be  sued  either  alone  or  jointly 
with  other  defendants  in  any  such  action,  except  as  aforesaid, 
which  might  have  been  maintained  against  such  decedent  if  he  had 
lived. 

NOTE. — This  is  Section  28  of  the  Act  of  1834,  i  Purd.  mi  (Section  29 
of  the  Commissioners'  Draft),  inserting  the  provision  as  to  actions  for 
mesne  profits  and  for  trespass  to  real  property,  and  omitting,  after  "libels," 
the  words  "and  for  wrongs  done  to  the  person."  These  words  were 
eliminated  by  the  Acts  of  1851  and  1895,  set  forth  in  the  last  preceding 
note. 

Section  28  of  the  Act  of  1834  was  new,  and  was  intended  to  "place  the 
law  respecting  the  right  of  executors  and  administrators  to  commence  and 


FIDUCIARIES  ACT— SECTION  35  (6),  (c),  (<J)  393 

prosecute  personal  actions  upon  a  certain  and  equitable  basis."  The 
Commissioners  of  1830  further  remarked  that  the  cases  of  slander,  libel 
and  wrongs  done  to  the  person  had  "always  been  excepted  here  and  in 
England,  because  being  derived  mainly  from  personal  considerations,  it  has 
been  supposed  to  be  against  the  policy  of  the  law  to  encourage  their  trans- 
mission to  or  against  the  representatives  of  the  deceased  party.  We  are 
disposed  to  stop  with  these  exceptions,  however,  and  to  place  all  other 
actions  upon  the  same  footing  with  respect  to  the  right  and  also  form  of 
action,  after  the  death  oi  the  party  as  before." 

1  Portion  in  italics  added  by  Amendment  of  March  30,  1921   (P.  L.  55). 

514.  PENDING   ACTIONS    OF   EJECTMENT   TO   EN- 

FORCE PAYMENT  OF  PURCHASE  MONEY. 

(c)  In  all  actions  of  ejectment  which  may  be  pending  at  the 
time  of  the  death  of  any  vendor  of  real  estate,  when  the  object  is  to 
enforcq  the  payment  of  purchase  money  due  and  owing  upon  an 
agreement  of  sale  of  such  real  estate,  it  shall  and  may  be  lawful 
for  the  executors  and  administrators  of  the  deceased  vendor  to 
sustain  the  same  in  their  own  names,  to  the  same  extent  and  in 
like|  manner  as  their  testator  or  intestate,  if  living,  could  do. 

NOTE.— This  is  Section  5  of  the  Act  of  April  9,  1849,  P.  L.  526,  I  Purd. 
1115,  modified  so  as  to  relate  only  to  actions  of  ejectment  pending  at  the 
death  of  the  vendor.  If  no  action  has  been  brought  in  his  lifetime,  the 
remedy  in  the  orphans'  court  is  made  exclusive  by  Section  18  (fc)  of  the 
present  draft  (See  460  supra.) 

515.  EXECUTORS  OR  ADMINISTRATORS  MAY  SUE 

OR  DISTRAIN  FOR  ARREARAGES  OF  RENT- 
CHARGE;  OR  OTHER  RENT  OR  RESERVA- 
TION, DUE  TO  DECEDENT. 

(d)  The  executors  or  administrators  of  every  person  who  was 
the  proprietor  of  any  rent-charge  or  other  rent  or  reservation  in 
nature  of  a  rent,  in  fee  or  otherwise,  as  mentioned  in  Section  n, 
clause  (/) ,  of  this  act,1  shall  and  may  have  an  action  for  the  ar- 
rearages of  such  rent  due  to  the  decedent,  at  the  time  of  his 
decease,  against  the  person  who  ought  to  have  paid  such  rent,  or 
his  executors  or  administrators;  or  they  may  distrain  therefor 
upon  the  lands  or  tenements  which  were  charged  with  the  pay- 
ment thereof,  and  liable  to  the  distress  of  such  decedent,  so  long 
as  such  lands  or  tenements  remain  and  are  in  the  seisin  or  posses- 
sion of  the  tenant  who  ought  to  have  paid  such  rent,  or  in  the 
possession  of  any  other  person  claiming  the  same,  from  or  under 
the  same  tenant,  by  purchase,  gift  or  descent,  in  like  manner  as 
such  decedent  might  have  done  if  he  had  lived. 


394  FIDUCIARIES  ACT— SECTION  35  (<0,  ('),  (/) 

NOTE. — This  is  Section  29  of  the  Act  of  1834,  i  Purd.  mi  (Section  30 
of  the  Commissioners'  Draft),  which  was  founded  on  Section  I,  Chapter  37 
of  the  statute  32  Henry  VIII. 

The  words  "of  debt"  have  been  omitted  after  "action"  in  the  fifth  line. 

lScc  397,  supra. 

516.  EXECUTORS   OR  ADMINISTRATORS   OF   LIFE 

TENANT  MAY  SUE  FOR  PROPORTION  OF 
RENT  DUE  UP  TO  DATE  OF  DEATH. 
(?)  The  executors  or  administrators  of  any  tenant  for  life, 
who  shall  die  before  or  on  a  day  on  which  any  rent  was  reserved 
or  made  payable  upon  any  demise  or  lease  of  any  real  estate, 
which  determined  on  the  death  of  such  tenant  for  life,  may  have 
an  action  to  recover  from  the  lessee  or  under-tenant  of  such 
real  estate,  if  such  tenant  for  life  die  on  the  day  on  which  the 
same  was  made  payable,  the  whole,  or,  if  before  the  day,  a  pro- 
portion of  such  rent  for  the  last  year,  or  quarter  of  a  year,  or 
other  current  period  of  payment,  according  to  the  time  elapsed  at 
the  decease  of  such  tenant  for  life  as  aforesaid. 

NOTE.— This  is  Section  30  of  the  Act  of  1834,  i  Purd.  mi  (Section 
31  of  the  Commissioners'  Draft),  which  was  derived  from  the  statute  n 
George  II,  Chapter  19,  Section  15. 

The  words  "on  the  case"  have  been  omitted  after  "action"  in  the  fifth 
line. 

517.  EXECUTORS   OR  ADMINISTRATORS    MAY   BE 

SUBSTITUTED  IN  PENDING  ACTIONS  AND 
MAY  ISSUE  EXECUTION  ON  JUDGMENT  IN 
FAVOR  OF  DECEDENT. 

(/)  The  executors  or  administrators  of  any  person  who,  at 
the  time  of  his  decease,  was  a  party,  plaintiff,  petitioner,  defendant 
or  respondent,  in  any  action  or  legal  or  equitable  proceeding  pend- 
ing in  any  court  of  this  commonwealth,  shall  have  full  power, 
if  the  cause  of  action  shall  by  law  survive  to  or  against  them,  to 
become  party  thereto  and  prosecute  or  defend  such  suit  or  pro- 
ceeding to  final  judgment  or  decree,  as  fully  as  such  decedent 
might  have  done  if  he  had  lived ;  and  if  such  party  die  after  judg- 
ment, certificate,  or  decree  in  his  favor,  his  executors  or  ad- 
ministrators may  proceed  to  execution  thereupon,  as  such  party 
might  have  done  if  he  had  lived.  This  clause  shall  apply  whether 
the  decedent  is  a  sole  or  joint  plaintiff,  petitioner,  defendant  or 
respondent.1 


FIDUCIARIES  ACT— SECTION  35  (/),   (g)  395 

NOTE. — This  is  Section  26  of  the  Act  of  February  24,  1834,  i  Purd.  mo 
(Section  27  of  the  Commissioners'  Draft),  derived,  as  to  the  first  part,  from 
the  Act  of  April  13,  1791,  3  Sm.  L,.  28,  and,  as'  to  the  last  clause,  intended 
to  sanction  expressly  the  existing  practice  of  substituting  the  executor  or 
administrator  of  the  plaintiff  in  a  judgment  without  sci.  fa.  See  Romer's 
Admr.  v.  Sterling,  10  S.  &  R.  119. 

The  Commissioners  remarked  that  they  had  placed  decrees  of  the 
orphans'  court  on  the  same  footing  with  judgments.  It  has  been  held  that 
the  section  applies  to  proceedings  in  equity  as  well  as  at  law :  Carroll  v. 
Tufts,  9  D.  R.  144.  The  words  "or  equitable"  have  now  been  inserted. 

Under  this  section,  it  was  held  that  all  personal  actions  survived,  except 
actions  for  slander,  libel  or  wrongs  done  to  the  person :  Miller  v.  Wilson, 
24  Pa.  114.  Actions  for  wrongs  to  the  person  are  covered  by  clause  (&)  of 
this  section  of  the  draft. 

The  last  clause  is  now  changed  so  as  to  include  cases  of  judgments  for 
costs,  and  certificates,  in  favor  of  a  defendant. 

1  Portion  in  italics  added  by  amendment  of  March  30,  1921   (P.  L.  55). 

518.  SCIRE  FACIAS  TO  BRING  IN  EXECUTORS  OR 
ADMINISTRATORS  OF  DECEASED  PARTY; 
CONTINUANCE. 

(g)  The  court  in  which  any  action  or  legal  or  equitable  pro- 
ceeding may  be  pending  at  the  time  of  the  decease  of  a  party, 
plaintiff,  petitioner,  defendant  or  respondent,  shall  have  power 
to  require,  by  writ  of  scire  facias,  the  executors  or  administrators 
of  such  party,  within  twenty  days  after  the  service  thereof,  to 
become  party  to  such  action  or  proceeding,  or  to  show  cause  why 
they  should  not  be  made  party  thereto,  by  judgment  of  the  court, 
and  further  proceedings  be  had  in  such  action  or  proceeding ;  but 
in  every  such  case,  the  executors  or  administrators,  who  shall 
become  party  as  aforesaid,  shall  be  entitled  to  a  reasonable  con- 
tinuance of  such  action  or  proceeding,  according  to  the  circum- 
stances of  the  case.  This  clause  shall  apply  whether  the  decedent 
is  a  sole  or  joint  plaintiff,  petitioner,  defendant  or  respondent.1 

NOTE. — This  is  Section  27  of  the  Act  ofi  1834,  i  Purd.  mi  (Section  28 
of  the  Commissioners'  Draft),  which  was  derived  from  the  Act  of  April 
T3,  I791,  3  Sm.  L.  28,  Section  8,  now  altered  by  inserting  the  words  "or 
equitable"  in  the  first  line,  substituting  after  the  word  "pending"  in  the 
second  line,  instead  of  the  words  "as  aforesaid"  the  words  "at  the  time  of 
the  decease  of  a  party,  plaintiff,  petitioner,  defendant  or  respondent;"  and 
by  providing  for  "a  reasonable  continuance"  instead  of  a  continuance 
"during  one  term."  The  words  "at  the  next  succeeding  term"  have  been 
omitted  after  "to  show  cause." 

1  Portion  in  italics  added  by  amendment  of  March  30,  1921   (P.  L.  55) 


396  FIDUCIARIES  ACT— SECTION  3$  (*),  (•) 

519.  SERVICE    OF   SCIRE    FACIAS    WHEN    EXECU- 

TORS OR  ADMINISTRATORS  RESIDE  WITH- 
OUT THE  COUNTY. 

(h)  Whenever  the  executor  or  administrator  of  a  deceased 
plaintiff,  petitioner,  defendant,  or  respondent,  in  any  action  or  legal 
or  equitable  proceeding  pending  in  any  court  of  this  common- 
wealth, resides  without  the  jurisdiction  of  the  said  court,  the  writ 
of  scire  facias  provided  by  the  preceding  clauses  of  this  section 
may  be  served  on  such  executor  or  administrator  "by  the  sheriff 
of  the  county  where  he  is  resident,  if  in  the  opinion  of  the  proper 
court  such  service  may  be  reasonably  practicable;  but  if  other- 
wise, and  also  where  the  said  executor  or  administrator  resides  in 
some  other  state  of  the  United  States,  such  sen-ice  may  be  made 
by  publication,  in  one  or  more  public  newspapers,  as,  in  the 
opinion  of  the  court,  will  be  most  likely  to  give  notice  to  the 
said  executors  or  administrators;  the  said  manner  of  service 
herein  provided  to  have  the  same  force  and  effect  as  the  manner 
of  service  provided  by  the  said  clauses. 

NOTE.— This  is  Section  i  of  the  Act  of  April  6,  1859,  P.  L.  384,  I  Purd. 
1115.  The  words  "petitioner,"  "respondent,"  and  "legal  or  equi- 
table" have  been  inserted  in  the  second  and  third  lines. 

520.  ACTIONS  NOT  TO  ABATE  BY  DEATH,  DISMIS- 

SAL, REMOVAL,  RESIGNATION  OR  RENUN- 
CIATION OF  FIDUCIARIES. 

0»)  No  action  or  other  legal  or  equitable  proceeding,  com- 
menced by  or  against  fiduciaries,  or  in  which  fiduciaries  are 
parties,  shall  abate  or  be  otherwise  defeated,  by  reason  of  the 
death,  dismissal,  removal,  resignation  or  renunciation  of  any  one 
or  more  of  them,  nor  by  reason  of  the  annulling  or  revoking  of 
the  letters  or  powers  granted  to  them,  or  any  of  them;  but  such 
suit  or  proceeding  may  be  prosecuted  to  final  judgment  or  decree, 
by  or  against  such  other  person  or  persons  as  may  have  been 
joined  with  them  in  the  administration  or  trust,  or  by  or  against 
such  person  or  persons  as  may  be  their  successors  therein,  in  all 
cases,  in  like  manner  as  if  no  such  change  had  occurred  or  act 
been  done;  and  in  all  cases  of  vacancy  in  the  administration  or 
trust  as  aforesaid,  the  successors  therein  shall  be  made  party  to 
such  action  or  proceeding,  in  the  manner  provided  by  clauses 
(/)>  (9}  and  (/O  of  this  section. 


FIDUCIARIES  ACT— SECTION  35  (•),  (/)  397 

NOTE. — This  is  derived  from  Section  32  of  the  Act  of  1834,  I  Purd.  1113 
(Section  33  of  the  Commissioners'  Draft),  which  was  founded  on  Section 
7  of  the  Act  of  March  24,  1818  (7  Sm.  L.  132),  P.  L.  285,  4  Purd.  4929. 
The  latter  section  includes  "executors  or  administrators,  trustees  or  as- 
signees," and  is  not  to  be  repealed  so  far  as  it  relates  to  trustees  not 
within  the  jurisdiction  of  the  orphans'  court,  and  to  assignees. 

The  Act  of  1818  related  only  to  cases  in  which  suit  was  brought  by 
fiduciaries.  The  Act  of  1834  extended  this  to  suits  against  executors  or 
administrators. 

Section  13  of  the  Act  of  April  9,  1849,  P-  k.  S2^,  I  Purd.  1115,  includes 
cases  in  which  executors  or  testamentary  trustees  are  plaintiffs. 

Section  32  of  the  Act  of  1834  is  altered,  in  the  present  draft,  by  substi- 
tuting "fiduciaries"  for  "executors  or  administrators,"  by  extending  it  to 
cases  where  fiduciaries  are  parties  although  the  action  was  not  brought  by 
or  against  them,  by  adding  "removal"  in  the  fourth  line,  by  adding  the 
words  "or  trust"  in  the  tenth  and  fourteenth  lines,  and  by  substituting  a 
reference  to  other  clauses  of  the  new  act  for  the  reference  to  Sections  26 
and  27  of  the  Act  of  1834.  The  words  "or  equitable"  have  been  inserted 
in  the  first  line. 

It  seems  that  Section  13  of  the  Act  of  1849,  above  referred  to,  may  be 
repealed,  as  well  as  Section  7  of  the  Act  of  1818,  so  far  as  it  relates  to 
fiduciaries  within  the  scope  of  the  present  act. 

521.  FAILURE  TO  PLEAD  ANY  MATTER  RELATIVE 
TO  ASSETS,  OR  TO  REPLY  THERETO,  NOT 
TO  BE  DEEMED  AN  ADMISSION. 

(/)  The  omission  of  an  executor  or  administrator  to  plead  to 
any  action  brought  against  him  in  his  representative  character,  that 
he  has  fully  administered  the  estate  of  the  decedent,  or  any  other 
matter  relative  to  the  assets,  shall  not  be  deemed  an  admission  of 
assets  to  satisfy  the  demand  made  in  such  action ;  also  the  omission 
of  the  plaintiff  to  reply  to  any  such  matter  when  pleaded,  shall 
not  be  deemed  an  admission  of  the  want  of  assets  as  aforesaid,  nor 
shall  such  omission  otherwise  prejudice  either  party;  and  no  mis- 
pleading, or  lack  of  pleading,  by  executors  or  administrators,  shall 
make  them  liable  to  pay  any  debt  or  damages  recovered  against 
them  in  their  representative  character,  beyond  the  amount  of  the 
assets,  which  in  fact,  have  come  or  may  come  or  should  have 
come  into  their  hands. 

NOTE.— This  is  Section  37  of  the  Act  of1  1834,  i  Purd.  1114  (Section  38 
of  the  Commissioners'  Draft),  which  was  new  in  the  Act  of  1834.  In  the 
last  line  the  words  "or  should  have  come"  have  been  added.  It  might  be 
considered  that  this  section  has  been  rendered  obsolete  by  the  statutory 
changes  in  the  system  of  pleading.  But  the  Commissioners  have  concluded 
to  recommend  its  retention  lest  its  omission  might  give  rise  to  some  er- 
roneous inference. 


398  FIDUCIARIES  ACT— SECTIONS  35  (*) -36-37 

522.  ABATEMENT  OF  FAILURE  TO  TAKE  OUT  LET- 

TERS IN  DECEASED  PLAINTIFF'S  ESTATE. 

(k)  In  any  suit  now  pending  or  hereafter  to  be  brought  in  any 
court  of  this  state,  if  the  plaintiff  be  dead  or  shall  die  during  the 
pendency  thereof,  and  no  letters  testamentary  or  of  administFation 
have  been  or  shall  be  taken  out  in  this  state  within  one  year  after 
the  suggestion  of  the  death  of  such  plaintiff  upon  the  record,  it 
shall  not  be  the  duty  of  the  defendant  to  raise  an  administrator 
for  the  purpose  of  prosecuting  the  same,  but  the  court  in  which 
such  suit  is  or  shall  be  pending  may,  after  due  sen-ice  upon  the 
executors  named  in  the  will  of  such  plaintiff,  if  known  to  defend- 
ant, or  upon  the  next  of  kin  of  the  decedent  entitled  to  administra- 
tion, of  a  rule  to  show  cause,  enter  an  order  that  said  suit  shall 
abate,  unless,  before  the  return  day  of  such  rule,  letters  testa- 
mentary or  of  administration  shall  be  duly  issued. 

NOTE. — This  is  Section  i  of  the  Act  of  May  5,  1854,  P.  L.  570,  i  Purd. 
228,  2  P.  &  L.  2665,  changed  so  as  to  provide  for  a  rule  to  show  cause. 
The  section  now  provides  that  at  the  end  of  the  year  the  suit  shall  abate 
and  the  prothonotary  shall  make  an  entry  accordingly,  provided  that  the 
court  shall  direct  a  notice  to  be  served  one  month  before  such  entry  shall 
be  made. 

523.  STATUTE  OF  LIMITATIONS  TO  RUN  AGAINST 

DEBT  FALLING  DUE  TO  ESTATE  OF  DECE- 
DENT AFTER  HIS  DEATH  ALTHOUGH  LET- 
TERS HAVE  NOT  BEEN  GRANTED. 
SECTION  36.  The  statute  of  limitations  shall  begin  to  run  against 
a  debt  or  demand  arising  or  falling  due  to  the  estate  of  a  decedent, 
after  his  or  her  death,  from  the  time  such  debt  or  demand  shall 
arise  or  fall  due,  as  aforesaid,  notwithstanding  that  letters  testa- 
mentary or  letters  of  administration  have  not  been  granted  on 
such  estate. 

NOTE.— This  is  Section  i  of  the  Act  of  April  6,  1905,  P.  L.  114,  6  Purd. 
6527.  Section  2  is  a  general  repealer. 

In  the  next  to  the  last  line,  "granted"  has  been  substituted  for  "taken 
out" 

524.  SUITS  AGAINST  FIDUCIARIES  WHO   DO   NOT 

RESIDE  IN  COUNTY  THE  COURT  OF  WHICH 
HAS  JURISDICTION  OF  THEIR  ACCOUNT. 
SECTION  37.     In   all   cases  where   executors,  administrators, 
guardians  or  trustees   shall   not   reside   within  the   county   the 


FIDUCIARIES  ACT— SECTION  37  399 

orphans'  court  of  which  has  jurisdiction  of  their  accounts,  pro- 
ceedings may  be  had  and  suits  may  be  brought  against  them  by 
creditors  and  others  interested  in  the  estates,  in  the  counties  where 
such  accounts  are  to  be  settled,  and  process  may  be  served  on 
said  fiduciaries,  in  any  other  county  by  the  sheriff  of  such  other 
county,  who  shall  be  deputized  for  that  purpose  by  the  sheriff 
of  the  county  in  which  the  process  issues,  or  process  may  be  served 
upon  any  surety  on  the  official  bonds  of  such  fiduciaries. 

NOTE. — This  is  Section  i  of  the  Act  of  March  27,  1854,  P.  L.  214,  4  Purd. 
4929,  with  the  insertion  of  the  words  "guardians  or"  instead  of  "assignees 
or  other,"  thus  limiting  the  section  to  fiduciaries  within  the  scope  of  the 
present  act.  The  Act  of  1854  is  not  recommended  for  repeal  so  far  as  it 
relates  to  other  fiduciaries. 

The  words  "the  county  the  orphans'  court  of  which  has  jurisdiction" 
have  been  substituted  for  "the  jurisdiction  of  the  court  having  control." 
The  provision  as  to  deputizing  the  sheriff  of  another  county  has  been  sub- 
stituted for  the  following:  "and  process  may  be  served  by  proper  officers 
of  said  counties,  or  their  deputies,  on  said  executors,  administrators,  as- 
signees or  other  trustees  beyond  the  bounds  of  said  counties,  as  if  they 
resided  therein,  or  upon  any  surety  on  their  official  bonds,  with  like  effect 
as  if  they  had  resided  within  the  jurisdiction  of  the  courts  having  control 
of  their  accounts." 

A  writ  of  summons  can  be  served  by  the  sheriff  upon  an  executor  tem- 
porarily within  his  jurisdiction  whose  residence  is  in  another  county  where 
the  letters  were  granted. 

The  purpose  of  the  Acts  of  March  27,  1854,  P.  L.  214,  and  of  June  7, 
1917,  P.  L.  447,  Sec.  37,  was  to  assist  creditors  and  others  and  not  to  pro- 
tect! the  fiduciary  nor  to  limit  the  suit  to  a  particular  jurisdiction. 

Cohn  died  in  Philadelphia  on  June  24,  1917,  having  made  his  last  will 
and  testament,  duly  admitted  to  probate  before  the  Register  of  Wills  of 
Philadelphia  County,  and  letters  testamentary  were  granted  to  the  de- 
fendant. On  August  15,  1918,  the  plaintiff  brought  an  action  in  assumpsit  in 
the  Court  of  Common  Pleas  of  Lancaster  County  against  the  defendant  as 
executor  of  the  decedent,  and  while  the  defendant  was  visiting  there,  the 
Sheriff  of  Lancaster  County  served  the  writ  of  summons  upon  him.  The 
sole  question  raised  in  the  proceeding  was  whether  a  writ  of  summons 
can  thus  be  served  by  the  Sheriff  upon  an  executor  whose  residence  is  in 
another  county  while  the  defendant  is  in  his  jurisdiction. 

In  discharging  a  rule  to  set  aside  the  summons  the  court,  per  LANDIS,  J., 
said : 

"By  the  Act  of  June  7,  1917,  P.  L.  447,  called  'The  Fiduciaries  Act,' 
the  Act  of  1854  is  expressly  repealed,  'so  far  as  it  related  to  fiduciaries 
subject  to  the  jurisdiction  of  the  orphans'  court'  (see  page  543),  and  in 
lieu  thereof,  the  37th  section  was  inserted,  as  follows:  (quoting  it). 
This,  too,  is  a  statute  made  for  the  benefit  of  creditors  and  others,  but 
not  to  protect  the  fiducianr  nor  to  limit  the  suit  to  a  particular  juris- 


400  FIDUCIARIES  ACT— SECTIONS  37-38-39 

diction.  Particularly  is  this  so,  if  personal  service  can  be  had,  for  under 
such  circumstances,  what  good  reason  would  there  be  for  going  to  an- 
other county  to  accomplish  a  purpose  which  could  as  well  be  reached 
at  home?"  Harris  v.  Blatt,  28  Dist.  n,  35  Lane.  361,  8  Leh.  80,  66  P.  L.  J. 
648,  32  York  101. 

525.  SUITS    BY    FIDUCIARIES    AGAINST    COFIDU- 

CIARY. 

SECTION  38.  Where  one  of  two  or  more  fiduciaries  shall  be 
personally  or  individually  indebted,  obligated  or  liable  to  the 
estate  which  he  represents,  it  shall  be  lawful  for  the  other 
fiduciaries,  or  either  of  them,  to  institute  an  action  at  law,  bill 
in  equity,  or  other  appropriate  legal  or  equitable  proceeding,  on 
behalf  of  the  said  estate,  against  such  fiduciary,  individually,  to 
recover  or  enforce  the  said  indebtedness,  obligation  or  liability,  in 
the  same  manner  as  though  such  fiduciary  were  not  connected  with 
the  said  estate :  Provided,  That  this  shall  not  in  anywise  affect  the 
duty  or  liability  of  such  fiduciary  to  account  therefor  in  the  office 
of  the  register  of  wills  or  in  the  orphans'  court  in  the  manner  now 
provided  by  law,  the  remedy  herein  provided  being  in  addition  to 
other  remedies,  legal  or  equitable,  already  existing. 

NOTE. — This  covers  Sections  i  and  2  of  the  Act  of  May  n,  1901,  P.  L. 
174,  i  Purd.  1115,  substituting  "fiduciaries"  for  "executors,  administrators, 
guardians,  assignees,  or  trustees,"  inserting  "or  liable,"  and  "or  lia- 
bility," substituting  "other"  for  "remaining"  in  line  4,  and  inserting  in 
the  proviso  the  words  from  "office"  to  "in  the," 

Since  the  Act  of  1901  includes  assignees  and  trustees  other  than  those 
over  whom  the  orphans'  court  has  jurisdiction,  it  should  not  be  repealed 
generally. 

"If  Edwin  A.  Yarnall,  the  executor  not  indebted,  had,  under  Section  38 
of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L-  447,  proceeded  against  his 
co-executor  for  the  amount  of  the  note,  it  would  have  been  a  good  defence 
for  Albert  T.  Yarnall  to  have  averred  that  his  distributive  share  would 
be  sufficient  to  pay  said  indebtedness.  Mutual  demands  extinguish  each 
other,  and  the  indebtedness  to  the  estate  by  a  legatee  has  always  been 
considered  a  payment  on  account  of  the  legacy :  Palmer's  Estate,  2  Del. 
180,  and  cases  there  cited."  THOMPSON,  J.,  in  Young's  Est.,  30  Dist.  182. 

526.  REVIVAL  OF  JUDGMENT  AGAINST  EXECUTOR 

OR  ADMINISTRATOR  OF  JUDGMENT  CRED- 
ITOR. 

SECTION  39.  In  all  cases  where  a  creditor  has  appointed  or 
shall  appoint  his  judgment  debtor  his  executor,  or  where  such 


FIDUCIARIES  ACT— SECTIONS  39-40  401 

judgment  debtor  has  been  or  shall  be  appointed  administrator  of 
the  creditor,  and  the  said  judgment  is  a  lien  on  the  real  estate  of 
such  executor  or  administrator,  and  the  same  is  bequeathed 
specifically  to  a  legatee,  or  generally  in  the  residuary  clause  of 
such  testator's  will,  or  where  any  testator  or  intestate,  having  a 
judgment  situated  as  aforesaid,  shall  have  creditors  interested  in 
preserving  the  lien  of  such  judgment,  such  legatee  or  creditor 
or  the  next  of  kin  of  an  intestate,  interested  in  such  judgment, 
may  suggest  his  or  their  interest  in  the  same  upon  the  record 
thereof,  and  issue  al  writ  of  scire  facias  against  the  defendant,  to 
revive  the  same,  and  continue  the  lien  thereof,  at  any  time  when 
such  proceedings  shall  be  necessary  under  the  laws  of  this  com- 
monwealth; which  judgment,  so  revived,  shall  remain  for  the  use 
of  all  persons  interested  therein. 

NOTE. — This  is  Section  2  of  the  Act  of  April  3,  1829  (10  Sin.  L.  317) 
P.  L.  122,  i  Purd.  1109,  changed  so  as  to  cover  the  case  of  an  adminis- 
trator as  well  as  an  executor. 

527.  COMPROMISE  BY  FIDUCIARY  OF  CLAIMS 
AGAINST  ESTATE,  OR  QUESTIONS  AS  TO 
WILL  OR  DISTRIBUTION. 

SECTION  40.  Whenever  it  shall  be  proposed  to  compromise  or 
settle  any  claim,  whether  in  suit  or  not,  by  or  against  a  minor  or 
the  estate  of  a  decedent,  or  to  compromise  or  settle  any  question  or 
dispute  concerning  the  validity  or  construction  of  any  last  will 
and  testament  or  the  distribution  of  any  decedent's  estate,  the 
orphans'  court  having  jurisdiction  of  the  accounts  of  the  fiduciary 
shall  be  authorized  and  empowered,  on  petition  by  such  fiduciary, 
setting  forth  all  the  facts  and  circumstances  of  such  claim  or 
question  and  proposed  compromise  or  settlement  and  duly  verified 
by  oath  or  affirmation,  and  after  due  notice  to  all  parties  interested, 
and  after  due  consideration,  aided,  if  necessary,  by  the  report  of  a 
master,  if  satisfied  that  such  compromise  or  settlement  will  be 
for  the  best  interests  of  such  minor  or  of  the  estate  of  such 
decedent,  to  enter  a  decree  authorizing  the  same  to  be  made, 
which  decree  shall  operate  to  relieve  the  fiduciary  of  responsibility 
in  the  premises. 

NOTE. — This  is  a  new  section. 

It  would  seem  that,  at  present,  it  is  doubtful  whether  the  orphans'  court 
has  power  to  authorize  compromises,  which  must  be  made  by  fiduciaries 
26 


402  FIDUCIARIES  ACT— SECTIONS  40-41  (a)  i 

on  their  own  responsibility:  Lowery's  Estate,  9  Pa.  C.  C.  88;  Morton's 
Estate,  201  Pa.  269. 

Such  jurisdiction  however  has  been  frequently  exercised  to  the  very 
great  advantage  of  the  parties  litigant  or  concerned  in  the  dispute;  and  it 
is  proposed  in  this  section  to  place  the  jurisdiction  of  the  court  beyond 
question.  Otherwise,  a  fiduciary  may  feel  bound  to  litigate  and  thus  throw 
the  chances  of  the  litigation  on  his  cestui  que  trust  or  ward,  or  assume  the 
responsibility  of  the  settlement  and  take  the  chance  of  having  his  conduct 
questioned  in  the  future. 

528.  INVESTMENTS  BY  FIDUCIARIES,— LEGAL  IN- 
VESTMENTS,—DEBT  OF  UNITED  STATES, 
ETC. 

SECTION  41.  (a)  i.  When  the  fiduciary  shall  have  in  his  hands 
any  moneys,  the  principal  or  capital  whereof  is  to  remain  for  a 
time  in  his  prossession  or  under  his  control,  and  the  interest, 
profits  or  income  whereof  are  to  be  paid  away,  or  to  accumu- 
late, or  when  the  income  of  real  estate  shall  be  more  than 
sufficient  for  the  purpose  of  the  trust,  such  fiduciary  may  invest 
such  moneys  in  the  stock  or  public  debt  of  the  United  States,  or 
in  the  public  debt  of  this  commonwealth,  or  in  bonds  or  certifi- 
cates of  debt  now  created  or  hereafter  to  be  created  and  issued 
according  to  law  by  any  of  the  counties,  cities,  boroughs,  town- 
ships, or  school  districts  of  this  commonwealth,  or  in  mortgages 
or  ground  rents  in  this  commonwealth :  Provided,  That  nothing 
herein  contained  shall  authorize  any  fiduciary  to  make  any  invest- 
ment contrary  to  the  directions  contained  in  the  will  of  the  de- 
cedent in  regard  to  the  investment  of  such  moneys. 

NOTE. — This  and  the  next  two  paragraphs  are  a  combination  of  Section 
14  of  the  Act  of  March  29,  1832,  I  Purd.  1109,  Section  2  of  the  Act  of 
April  13,  1854,  P.  L.  369,  i  Purd.  mo,  and  Section  i  of  the  Act  of  May  8, 
1876,  P.  L.  133,  i  Purd.  1 1 10. 

The  Commissioners  believe  that  the  powers  of  investment  granted  to 
fiduciaries  under  the  present  law  are  too  greatly  restricted  and  that  their 
enlargement  would  be  welcomed  throughout  the  State.  At  present  trustees 
are  limited  to  loans  of  the  United  States,  the  State  of  Pennsylvania, 
municipal  corporations  of  the  State,  mortgages  and  ground  rents;  and 
according  to  the  literal  wording  of  the  statutes  the  decree  of  the  orphans' 
court  should  be  first  obtained,  although  in  practice  the  statutes  have  been 
considered  as  authorizing  the  investments  specified,  and  the  necessity  of  a 
preliminary  application  has  been  disregarded. 

The  Commissioners  would  be  willing  to  recommend  a  more  extensive 
act  were  it  not  for  the  Constitution,  which  in  Art.  Ill,  Section  22,  would 
seem  to  prohibit  the  legislature  from  authorizing  an  investment  in  the 
bonds  or  stocks  of  a  private  corporation.  They  have,  however,  drafted 


FIDUCIARIES  ACT— SECTION  41  (a)  i  403 

this  section  so  as  to  include  investments  in  bonds  of  municipal  corporations 
in  other  states,  requiring,  in  such  instances,  a  preliminary  application  to 
the  court  for  authority  to  make  such  investments. 

The  division  into  three  paragraphs  has  been  made  for  the  purpose  of 
clearness.  The  investments  enumerated  in  paragraph  I  are  made  legal 
investments  without  application  to  the  court.  The  requirement  of  the 
existing  laws  that  the  approval  of  the  court  shall  be  obtained  in  every 
case  is  disregarded  in  practice;  and  it  seems  better  to  omit  this  require- 
ment except  in  cases  of  investments  in  real  estate  in  Pennsylvania  or  in 
bonds  of  other  states  or  of  municipalities  outside  of  the  commonwealth,  as 
enumerated  in  paragraph  2. 

Section  14  of  the  Act  of  1832  was  copied  from  the  Act  of  February  18, 
1824,  P.  L.  25,  except  that  it  authorizes  the  investment  of  surplus  income  of 
real  estate  as  well  as  principal  and  interest  of  personal  estate. 

The  above-mentioned  sections  of  the  Acts  of  1854  and  :8?6  apply  to  all 
trustees,  and  should  be  repealed  only  so  far  as  they  relate  to  fiduciaries 
who  are  within  the  scope  of  the  present  draft. 

An  investment  by  a  trust  company  under  the  supervision  of  the  De- 
partment of  Banking  in  the  bonds  issued  by  a  private  corporation,  security 
for  which  is  a  mortgage  covering  the  real  estate  owned  by  the  private 
corporation,  is  not  a  legal  investment  under  the  constitution  and  laws. 

Myers,  Dep.  Atty.  Gen.,  in  an  opinion  to  the  Banking  Commissioner 
August  i6th,  1920,  said : — 

"There  is  nothing  contrary  to  Section  22,  Art.  Ill  of  the  Constitution 
in  Section  41  (a)  of  the  Act  of  June  7,  1917,  P.  L.  447.  That  act  does  not 
authorize  fiduciaries  to  invest  in  the  bonds  or  stock  of  any  private  corpora- 
tion. 

"You  are  therefore  advised  that  the  investment  by  a  trust  company  under 
the  supervision  of  your  department  in  the  bonds  issued  by  a  private  cor- 
poration, security  for  which  is  a  mortgage  covering  the  real  estate  owned 
by  the  private  corporation,  is  not  a  legal  investment  under  the  Constitu- 
tion and  laws  of  the  commonwealth."  Hotel  Mortgage,  50  Pa.  C.  C.  82; 
s.  c.  sub  nom  In  re  Trust  Funds,  68,  P.  L.  J.  608. 

Where  an  individual  owning  real  estate  in  the  City  of  Philadelphia 
made  a  first  mortgage  on  the  same  to  a  trust  company  as  trustee  to 
secure  an  issue  of  450  $1,000  bonds,  Hon.  Robert  S.  Gawthrop,  First 
Deputy  Attorney  General  in  an  opinion  on  November  4,  1921,  to  the 
Commissioner  of  Banking  held  that  such  bonds  were  not  comprehended 
under  the  word  "mortgages"  as  used  in  this  section  of  the  Act  and  could 
not  therefore  be  considered  as  legal  investments  for  trust  funds.  In  so 
holding  he  said : 

"Manifestly,  the  bonds  in  the  present  case  do  not  fall  within  any  class 
of  securities  described  in  the  above  cited  section  of  the  act  unless  it  be 
that  they  are  comprehended  within  the  meaning  of  the  words  'mortgages 
in  Pennsylvania.'  If  the  question  were  an  open  one  in  this  State,  I 
should  have  no  hesitation  in  concluding  that  the  investment  in  these 
bonds  is  not  an  investment  in  a  mortgage  in  the  Commonwealth.  One 
who  buys  one  of  the  four  hundred  and  fifty  $1,000  bonds,  secured 


404  FIDUCIARIES  ACT— SECTION  41  (a)  i,  2  , 

though  it  be  by  a  first  mortgage  given  by  a  trustee,  in  my  opinion,  does 
not  invest  his  money  in  a  mortgage.  The  owner  of  the  bond  has  no  such 
independent  control  of  the  mortgage  as  he  would  have  if  he  owned  the 
mortgage.  The  question  is  not  one  of  the  safety  of  the  investment,  but 
one  of  the  character  thereof  as  required  by  the  statute.  It  would  have 
been  a  simple  manner  for  the  Legislature  when  it  enacted  the  Fiduciaries 
Act  to  have  authorized  trustees  to  invest  in  bonds  secured  by  mortgages 
on  real  estate  situate  and  owned  by  individuals  in  the  Commonwealth, 
but  it  did  not  do  so  and  thereby  continued  the  policy  of  requiring  the 
utmost  conservatism  in  providing  legal  investments  for  trust  funds." 
Legal  Investments,  69  P.  L.  J.  777,  7  Pa.  State  Dept.  Rep.  2060. 

(Note: — This  is  contrary  to  the  expressed  opinion  of  many  leaders 
of  the  bar. — Editor.) 

529.  INVESTMENTS  IN  OTHER  REAL  ESTATE 
WITHIN  THE  COMMONWEALTH,  OR  IN 
DEBTS  OF  OTHER  STATES  OR  COUNTIES 
OR  CITIES  THEREOF. 

2.  When  a  fiduciary  shall  have  in  his  hands  any  moneys,  as 
aforesaid,  he  may  present  a  petition  to  the  orphans'  court  having 
jurisdiction  of  his  accounts,  stating  the  circumstances  of  the 
case  and  the  amount  or  sum  of  money  which  he  is  desirous  of 
investing;  whereupon  it  shall  be  lawful  for  the  court,  upon  due 
proof,  aided,  if  necessary,  by  the  report  of  a  master,  to  make  an 
order  directing  the  investment  of  such  moneys  in  real  estate  in 
this  commonwealth  other  than  ground-rents,  or  in  the  bonds  or 
certificates  of  debt  now  created  or  hereafter  to  be  created  and 
issued  according  to  law  by  any  other  state  of  the  United  States 
or  by  any  of  the  counties  or  cities  of  such  other  state,  at  such  prices, 
or  on  such  rates  of  interest  and  terms  of  payment  respectively, 
as  the  court  shall  think  fit:  Provided,  That  no  such  investment 
shall  be  directed  unless  it  shall  be  the  opinion  of  the  court  that 
it  will  be  for  the  advantage  of  the  estate  and  no  change  be  made 
in  the  course  of  succession  by  such  investment  as  regards  the 
heirs  or  next  of  kin  of  the  cestui  que  trust :  And  provided  further, 
That  nothing  herein  contained  shall  authorize  the  court  to  make 
an  order  contrary  to  the  directions  contained  in  any  will  in  regard 
to  the  investment  of  such  moneys. 

See  Legal  Investments,  69  P.  L.  J.  777,  7  Pa.  State  Dep.  Rep.  2060. 


FIDUCIARIES  ACT— SECTIONS  41  (a)  3,  (&)-42  (a)  405 

530.  FIDUCIARY  NOT  LIABLE  FOR  LOSS  ON  SUCH 

INVESTMENTS. 

3.  In  case  the  said  moneys  shall  be  invested  as  set  forth  in 
paragraph  i  of  this  clause,  or  conformably  to  the  directions  of 
the  court  under  paragraph  2  of  this  clause,  the  said  fiduciary  shall 
be  exempted  from  all  liability  for  loss  on  the  same,  in  like  manner 
as  if  such  investments  had  been  made  in  pursuance  of  directions  in 
the  will  creating  the  trust,  it  being  hereby  declared  that  the  in- 
vestments mentioned  in  this  section  are  legal  investments  of 
moneys  by  fiduciaries. 

531.  EXPENSE  OF  PROCURING  GUARANTY  OF  IN- 

VESTMENTS. 

(&)  Any  fiduciary  required  by  law,  by  the  order  of  any 
orphans'  court,  or  by  the  provisions  of  any  last  will  and  testament, 
under  or  by  authority  of  which  such  fiduciary  is  acting,  to  invest 
funds  within  his  control  in  mortgages  or  other  securities,  may 
include,  as  a  part  of  the  lawful  expense  of  executing  his  trust,  a 
reasonable  sum  paid  to  a;  company,  authorized  under  the  laws  of 
this  state  so  to  do,  for  guaranteeing  the  payment  of  the  principal 
and  interest  of  such  mortgage  or  other  securities,  not  exceeding 
one-half  of  one  per  centum  per  annum1  upon  the  principal  of 
such  mortgage  or  other  securities. 

NOTE. — This  is  Section  i  of  the  Act  of  May  28,  1907,  P.  L.  271,  5  Purd. 
5893,  changed  by  substituting  the  word  "fiduciary"  for  "receiver,  assignee, 
guardian,  committee,  trustee,  executor,  or  administrator,"  and  omitting  the 
reference  to  "any  assignment,  deed  *  *  *  or  other  document." 

The  Act  of  1907  should  be  repealed  only  so  far  as  it  relates  to  fiduciaries 
subject  to  the  jurisdiction  of  the  orphans'  court 

Section  2  of  the  Act  of  1907  is  a  general  repealer. 

1  Added  by  Amendment  of  May  2,  1919,   (P.  L.  144). 

532.  ORGANIZATION  OF  CORPORATION  TO  CARRY 

ON  DECEDENT'S  BUSINESS,— PROPERTY  OF 
ESTATE  MAY  BE  CONTRIBUTED  IN  RETURN 
FOR  STOCK  WHETHER  OR  NOT  THE  WILL 
AUTHORIZED  CARRYING  ON  THE  BUSINESS. 

SECTION  42.  (a)  Fiduciaries  may  themselves,  or  jointly  with 
others,  organize  a  corporation  to  carry  on  the  business  of  the 
decedent,  whether  he  die  testate  or  intestate,  whether  the  business 


406  FIDUCIARIES  ACT— SECTION  42  (a),  (b) 

was  owned  solely  by  him  or  in  partnership  with  others,  if  such 
business  be  one  for  which  a  charter  could  have  been  obtained  in 
the  lifetime  of  the  decedent,  and  may  contribute  all  or  part  of 
the  property  of  the  estate  which  was  invested  in  the  business  at 
the  time  of  the  death  of  the  decedent,  as  capital  to  such  corpora- 
tion and  accept  stock  in  the  corporation  in  lieu  thereof. 

NOTE. — This  and  the  two  following  clauses  are  based  upon  Section  I  of 
the  Act  of  April  22,  1889,  P.  L.  42,  4  Purd.  4928,  extended  to  cases  of 
guardians  and  administrators  and  to  cases  where  the  will  does  not 
authorize  or  direct  the  continuance  of  the  business.  Cases  where  the 
testator  was  a  partner  with  others  are  also  included,  and  the  phraseology 
has  been  modified. 

The  Commissioners  have  considered  that  the  provisions  of  the  Act  of 
1889  might  well  be  extended  in  this  way.  Very  often  the  testator  is  en- 
gaged in  a  profitable  business  and  its  incorporation  will  obviously  be  of 
great  benefit  to  the  cestuis  que  trust  interested  in  the  estate,  or  when  the 
decedent  dies  intestate  the  interests  of  his  minor  children  can  best  be 
conserved  by  an  incorporation  of  the  business.  In  the  present  state  of  the 
law  this  cannot  be  done  by  trustees  or  guardians  without  possible  risk  to 
them  personally;  and  in  cases  of  a  partnership  dissolved  by  death,  where 
the  partnership  articles  do  not  sufficiently  protect  the  estate  of  the  deceased 
partner,  a  forced  liquidation  may  be  disastrous. 

As  the  incorporation  must  be  effected  under  the  supervision  of  the  court, 
it  is  conceived  that  the  interests  of  all  parties  concerned  will  be  properly 
safeguarded. 

533.  APPROVAL  OF  ORPHANS'  COURT  NECESSARY ; 
PROCEDURE. 

(6)  No  such  corporation  shall  be  organized  without  the  ap- 
proval of  the  orphans'  court  having  jurisdiction  of  the  accounts 
of  such  fiduciaries  first  had  and  obtained,  upon  petition  filed 
setting  forth  all  the  facts  and  circumstances  and  the  proposed 
terms  and  conditions  of  the  organization.  Such  notice  as  shall 
be  prescribed  by  said  court  shall  be  given  to  all  persons  having 
any  beneficial  interest,  vested  or  contingent,  in  the  estate  of  the 
decedent,  who  are  in  being  at  the  time  of  the  filing  of  such 
petition ;  and  the  said  court  shall  approve  such  organization  only 
after  inquiring  into  the  circumstances  and  the  proposed  terms  and 
conditions  of  such  organization,  aided,  if  necessary,  by  the  re- 
port of  a  master,  and  only  with  the  written  consent  of  all  persons 
interested  who  shall  be  sui  juris,  and  of  the  guardians  or  com- 
mittees of  such  as  shall  be  under  age  or  non  compos  mentis 


FIDUCIARIES  ACT— SECTIONS  42  (&),  (c)-43  407 

NOTE. — In  this  clause,  the  phraseology  has  been  altered  and  the  pro- 
visions of  the  Act  of  1889  for  the  appointment  of  special  guardians  or 
committees  in  such  proceedings  and  for  the  consent  of  the  husbands  of 
persons  interested  have  been  omitted. 

534.    HOW     STOCK     SHALL     BE     HELD;      VOTING 
STOCK. 

(c)  The  stock  of  any  such  corpqra<tioni  issued)  to  such 
fiduciaries  shall  be  held  by  them  for  the  same  uses,  trusts  and 
persons  as  the  estate  and  property  were  held  before  the  organiza- 
tion of  such  corporation;  they  shall  have  the  same  right  and 
power  to  vote  such  stock,  subject  to  the  same  control  by  the 
court,  as  prescribed  by  Section  43  of  this  act  regarding  shares 
of  stock  belonging1  to  the  decedent ;  and  they  shall  have  the  right 
to  sell  such  stock  under  the  direction  of  the  court. 

NOTE. — In  this  clause,  "the  stock  of  any  such  corporation  issued  to  such 
executors,"  etc.,  has  been  substituted  for  "the  whole  of  the  proceeds  of  the 
trust  estate,  whether  contributed  or  sold,  and  whether  paid  for  by  shares 
or  money,"  and  the  provisions  as  to  voting  and  sales  have  been  added. 

535-    VOTING    OF    STOCK    IN    CORPORATIONS    BY 
FIDUCIARIES. 

SECTION  43.  Fiduciaries,  whether  appointed  by  last  will  and 
testament  or  by  decree  of  the  orphans'  court,  shall  have  the  same 
right  and  power,  either  in  person  or  by  proxy,  at  all  corporate 
meetings,  to  vote  any  and  all  shares  of  stock,  held  by  them  in  a 
fiduciary  capacity,  in  any  corporation  organized  under  the  laws 
of  this  commonwealth,  as  the  deceased,  or  legal  owner  thereof 
had  in  his  lifetime.  And  where  such  stock  is  registered  on  the 
books  of  such  corporation  in  the  name  of,  or  has  passed  by  opera- 
tion of  law  or  by  virtue  of  any  last  will  and  testament  to  more  than 
two  fiduciaries,  and  dispute  shall  arise  among  them,  the  said  shares 
of  stock  shall  be  voted  by  a  majority  of  such  fiduciaries,  and  in 
such  manner  and  for  such  purposes  as  such  majority  shall  author- 
ize, direct  or  desire  the  same  to  be  voted.  If  the  number  of 
fiduciaries  shall  be  even  and  they  shall  be  equally  divided  upon 
the  question  of  voting  such  stock,  it  shall  be  lawful  for  the 
orphans'  court  having  jurisdiction  of  their  accounts,  upon  petition 
filed  by  any  of  such  fiduciaries  or  by  any  party  in  interest,  to 
direct  the  voting  of  such  stock  in  the  manner  which,  in  the  opinion 
of  said  court,  will  be  for  the  best  interests  of  the  parties  bene- 
ficially interested  in  the  stock. 


408  FIDUCIARIES  ACT— SECTIONS  43-44  (a),  (&) 

NOTE.— This  is  Section  i  of  the  Act  of  March  16,  1905,  P.  L.  42,  5  Purd. 
5890,  altered  by  substituting  "fiduciaries"  for  "executors,  administrators, 
guardians  and  trustees,"  and  "the  orphans"  court"  for  "the  proper  court," 
and  by  omitting,  after  "lifetime,"  in  line  8,  the  words,  "or  during  his 
legal  ownership  thereof,"  which  seem  not  to  apply  to  trusts  within  the 
scope  of  the  present  draft. 

The  Act  o{  1905  is  apparently  intended  to  include  trustees  appointed  by 
the  common  pleas,  though  it  makes  no  provision  as  to  trustees  appointed 
by  deed.  The  act  should  be  repealed  only  so  far  as  relates  to  fiduciaries 
who  are  within  the  scope  of  the  present  act 

The  expression  "any  corporation  in  this  commonwealth  or  organized 
under  the  laws  of  the  same"  has  been  changed  to  "organized  under  the 
laws  of  this  commonwealth,"  and  "certified,  or  stands  on  the  books"  has 
been  changed  to  "registered  on  the  books."  The  last  sentence  is  new. 

536.  LIABILITY  OF  EXECUTORS  AND  ADMINISTRA- 

TORS FOR  INTEREST,— WHEN  LIABLE. 

SECTION  44.  (a)  No  executor  or  administrator  shall  be  liable 
to  pay  interest  but  for  the  surplusage  of  the  estate  remaining  in 
his  hands  or  power  when  his  accounts  are  or  ought  to  be  filed: 
Provided,  That  nothing  herein  contained  shall  be  construed  to 
exempt  an  executor  or  administrator  from  liability  to  pay  interest, 
where  he  may  have  made  use  of  the  funds  of  the  estate  for  his 
own  purposes. 

NOTE. — This  is  Section  17  of  the  Act  of  March  29,  1832,  i  Purd.  1125 
(Section  18  of  the  Commissioners'  Draft).  It  was  derived,  as  to  the  first 
sentence,  from  Section  6  of  the  Act  of  March  27,  1713,  i  Sm.  L.  81,  which, 
however,  included  the  words  "guardian  or  trustee"  The  proviso  was 
new  in  the  Act  of  1832. 

The  Commissioners  of  1830  reported  that  this  section  ought  not  to  in- 
clude guardians  or  trustees,  "inasmuch  as  they  are  liable  for  interest  upon 
entirely  different  principles,  and  not  merely  after  the  period  when  their 
accounts  'are  or  ought  to  be  settled.' " 

The  changes  now  made  are:  to  substitute  "filed"  for  "settled  and  ad- 
justed," to  omit  "in  the  register's  office,"  after  "filed;"  and  to  omit,  at 
the  end,  "previously  to  the  time  when  his  accounts  are  or  ought  to  be 
filed  as  aforesaid." 

537.  RATE  OF  INTEREST. 

(b)  The  amount  of  interest  to  be  paid  in  all  cases  by 
fiduciaries  shall  be  determined  by  the  orphans'  court,  under  all  the 
circumstances  of  the  case,  but  shall  not,  in  any  instance,  exceed 
the  legal  rate  of  interest  for  the  time  being. 

NOTE. — This  is  Section  18  of  the  Act  of  March  29,  1832,  i  Purd.  1126 
(Section  19  of  the  Commissioners'  Draft),  which  was  new  in  that  act. 


FIDUCIARIES  ACT— SECTIONS  44  (&)-4S  409 

The  only  change  is  to  substitute  "fiduciaries"  for  "executors,  administra- 
tors and  guardians." 

538.     SAME  PERSON  SHALL  NOT  RECEIVE  COMMIS- 
SIONS AS  EXECUTOR  AND  TRUSTEE. 

SECTION  45.  In  all  cases  where  the  same  person  shall,  under  a 
will,  fulfill  the  duties  of  executor  and  trustee,  it  shall  not  be  law- 
ful for  such  person  to  receive  or  charge  more  than  one  commission 
upon  any  sum  of  money  coming  into  or  passing  through  his  hands, 
or  held  by  him  for  the  benefit  of  other  parties;  and  such  single 
commission  shall  be  deemed  a  full  compensation  for  his  services 
in  the  double  capacity  of  executor  and  trustee:  Provided,  That 
any  such  trustee  shall  be  allowed  to  retain  a  reasonable  commission 
on  the  income  he  may  receive  from  any  estate  held  by  him  in  trust 
as  aforesaid. 

NOTE.— This  is  Section  I  of  the  Act  of  March  17,  1864,  P.  L.  53,  I  Purd. 
1127. 

The  words  "income"  and  "estate"  are  substituted  for  "interest"  and 
"sum"  in  the  last  two  lines. 

Where  the  will  directs  the  executors  to  pay  over  to  the  trustees  all 
dividends,  interest  and  returns  of  principal  as  received,  so  that  the  tes- 
tator himself  must  have  contemplated  that,  before  making  disbursements 
of  income,  the  trustees  would  deduct  their  lawful  commissions  thereon,  and 
where  an  allowance  of  trustees'  commissions  on  income  at  5  per  cent,  is 
not  excessive  for  the  services  rendered,  it  is  immaterial  to  the  cestuis  que 
trust  whether  one  trustee  retained  all  the  commissions  credited  against 
income  or  divided  them  with  his  co-trustee,  who,  as  executor  received  a 
part  of  the  commissions  allowed  the  executors  on  the  same  income,  and 
the  court  will  allow  the  trustees  credit  for  the  full  amount  of  such  com- 
missions. 

"It  may  well  be  doubted  if  the  Act  of  March  17,  1864,  P.  L.  S3,  or  the 
succeeding  act,  section  45  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447, 
511,  applies  to  income,  although  it  goes  without  saying  that  under  ordinary 
circumstances,  where  an  accountant  is  both  executor  and  trustee,  he 
would  be  allowed  but  one  commission  on  income  collected.  The  question 
would  not  have  arisen  if  the  executors,  had,  as  is  customary,  distributed 
the  income  direct  to  the  life-tenants ;  but  they  were  prevented  from  doing 
this  by  the  language  of  the  will,  which,  by  the  seventh  paragraph  thereof, 
directs  the  executors  to  pay  over  to  the  trustees  all  dividends,  interest  and 
returns  of  principal  as  received,  so  that  the  testator  himself  must  have 
contemplated  that,  before  making  disbursements  of  income,  the  trustees 
would  deduct  their  lawful  commissions  thereon.  Assuming,  therefore, 
as  we  must  fromi  the  record  before  us,  that  an  allowance  of  commissions 
on  income  at  5  per  cent,  is  not  an  excessive  allowance  for  the  services 
rendered,  it  is,  as  pointed  out  by  the  auditing  judge,  immaterial  to  the 


410  FIDUCIARIES  ACT—  SECTIONS  45-46  (a) 

cestuis  que  trust  whether  the  Fidelity  Trust  Company  retained  all  the 
commissions  credited  against  income  or  divided  them  with  its  co-trustee. 
GUMMEY,  J.,  in  Merchant's  Est,  30  Dist.  92. 

539.  ACCOUNTS  OF  EXECUTORS,  ADMINISTRA- 
TORS AND  TRUSTEES,—  ACCOUNTS  OF  EX- 
ECUTORS AND  ADMINISTRATORS  TO  BE 
FILED  IN  SIX  MONTHS;  MAY  BE  CITED  TO 
ACCOUNT  AT  END  OF  SIX  MONTHS. 

SECTION  46.  (a)  It  shall  be  the  duty  of  every  executor  and 
administrator  to  file  in  the  register's  office  a  just  account  of  the 
administration  of  the  estate  at  the  expiration  of  six  months  from 
the  time  of  administration  granted  or  when  thereunto  required 
by  the  orphans'  court,  and  any  executor  or  administrator  ma> 
be  cited  to  file  his  account,  after  the  expiration  of  six  months 
from  the  date  of  issuance  of  letters  testamentary  or  of  administra- 
tion, on  petition  of  any  person  having  an  interest,  present  or 
future,  vested  or  contingent,  in  the  estate  of  the  decedent,  or  on 
petition  of  any  creditor  of  the  decedent. 

NOTE.  —  The  first  part  of  this  clause  is  derived  from  Section  15  of  the 
Act  of  March  15,  1832,  P.  L.  139,  i  Purd.  1089,  but  the  period  is  reduced 
from  one  year  to  six  months,  "at  the  expiration  of"  is  substituted  for 
"within,"1  and  "required  by  the  orphans'  court"  for  "legally  required." 
The  remainder  of  the  clause  is  new,  is  declaratory  of  the  existing  law, 
and  embodies  the  provisions  of  the  first  part  of  Section  i  of  the  Act  of 
April  17,  1869,  P.  L.  70,  i  Purd.  1138,  which  enables  the  owner  of  any 
contingent  interest  in  the  personal  property  of  any  decedent  to  require 
an  executor  or  administrator  to  file  his  accounts. 

The  remainder  of  that  section,  enabling  the  owner  of  a  contingent  interest 
to  require  the  legatee  of  any  previous  interest  in  the  same  property  to  give 
security,  is  covered  by  Section  23  of  the  present  draft.  (See  469  supra.) 

Formerly  the  term  of  one  year  was  perhaps  a  convenient  period  for 
filing  an  account,  but  under  modern  conditions  of  rapid  communication 
and  transportation,  it  is  no  longer  necessary  or  advisable.  The  majority 
of  estates  can  now  be  settled  by  the  end  of  six  months,  and  it  is  often  a 
great  hardship  to  legatees  and  creditors  to  compel  them  to  wait  for  a  full 
year  before  their  just  claims  can]  be  satisfied.  And  where  the  estate  is  so 
complicated  that  a  final  account  cannot  be  rendered  at  the  end  of  six 
months,  a  partial  account  may  be  filed,  debts  paid  or  at  least  ascertained 
with  some  degree  of  certainty,  and  the  will  construed  by  the  court  at  the 
audit  of  the  account. 

The  Commissioners  are  of  opinion  that  this  shortening  of  the  term  will 
be  of  great  advantage. 


should  apparently  be  "in." 
See  form  81. 


FIDUCIARIES   ACT— SUCTION   46(0)  411 

The  court  will  not  open  a  duly  filed  and  confirmed  administration  ac- 
count on  the  petition  of  a  next  of  kin  and  a  creditor,  who  failed  to  give 
written  notice  of  their  claims  to  the  accountant  as  required!  by  Section  46, 
(c),  of  the  Fiduciaries  Act,  1917,  P.  L.  447,  and  who  had  notice  of  the 
filing  of  the  account  from  one  other  than  the  accountant,  on  the  ground 
that  the  administrator  had  not  given  them  actual  notice  of  the  filing  of 
the  account. 

Interested  parties,  who  request  it,  should  have  ample  notice  of  the  time 
and  place  of  the  application  for  the  appointment  of  an  auditor  to  distribute 
the  balance  on  an  administration  account.  Morthland's  Est.,  32  York  137. 

The  provision  of  the  Fiduciaries'  Act  requiring  an  accounting  by  execu- 
tors, etc.  at  the  expiration  of  six  months,  does  not  apply  where  decedent 
died  prior  to  the  passage  of  the  Act.  Amodei's  Est.,  27  Dist.  373. 

Except  in  the  case  of  an  administration  pendente  lite  or  de  bonis  non, 
an  account  of  an  executor  or  administrator  filed  before  the  expiration  of 
six  months  from  the  grant  of  letters  is  premature,  and  distribution,  if 
made,  is  at  the  risk  of  the  accountant,  although  six  months  have  elapsed 
between  the  death  of  the  decedent  andi  the  date  of  audit. 

"The  section  of  the  Fiduciaries  Act  of  1917  above  quoted  now  takes  the 
place  of  section  15  of  thq  Act  of  March  15,  1832,  P.  L,.  135,  and  reduces 
the  time  for  filing  an  account  from  one  year  to  six  months ;  but  the  reason- 
ing of  the  judge  who  filed  the  opinion  in  Clemen's  Estate  (21  Dist.  175), 
applies  with  greater  force  to  the  present  act,  in  which  the  words  "at  the 
expiration  of"  are  substituted  for  the  word  "within."  In  order,  however, 
that  any  question  as  to  the  proper  time  for  the  filing  of  an  account  might 
be  set  at  rest,  we  incorporated  in  Rule  II  of  this  (Phila.)  court  the 
following  section: 

"i.  Accounts  of  executors  and  administrators  will  not  be  audited  unless 
filed  after  the  expiration  of  six  months  from  the  date  of  the  grant  of 
letters  testamentary  or  of  administration,  except  in  the  case  of  administra- 
tions pendente  lite  and  administrations  de  bonis  non,  where  more  than 
six  months  have  elapsed  since  the  granting  of  the  original  letters." 

The  reasons  for  excepting  administrations  pendente  lite  and  those  de 
bonis  non  are  set  forth  in  Clemens's  Estate,  21  Dist.  R.  175,  and  if  authority 
is  needed  for  our  right  to  make  this  matter  the  subject?  of  a  rule  of  court 
(which  counsel  seemed  to  doubt)  it  is  to  be  found  in  section  10  of  the 
Orphans'  Court  Act  of  1917,  and  in  McGreevy  v.  Kulp,  126  Pa.  97 ;  Gannon 
v.  Fritz,  79  Pa.  303,  and  numerous  other  cases."  GUMMEY,  J.,  in  Hayden's 
Est.,  28  Dist.  39. 

"Under  the  Act  of  March  isth,  1832,  P.  L.  139,  Pur.  Dig.,  page  1089, 
an  executor  or  administrator  was  required  to  file  "a  just  account  and 
settlement  of,"  the  "goods,  chattels  and  credits"  of  the  deceased,  "in  one 
year,  or  when  thereunto  legally  required."  In  the  Commissioners'  note  to 
Sec.  46  (a)  of  the  Fiduciaries  Act  of  1917,  it  is  inadvertently  stated  that 
in  this  section  of  the  Act  of  1832,  the  word  "within"  is  used,  but  it  is 
intended  doubtless  to  refer  to  Section  24  of  the  Act,  Purd.  Dig.,  page  1078, 
where  the  form  of  the  condition  of  the  fiduciary's  bond  is  prescribed,  which 
includes  an  obligation  to  account  "within  one  year"  from  its  date,  or  when 
thereunto  legally  required.  Under  Sec.  38  of  the  Act  of  1832,  Purd.  Dig. 


4I2  FIDUCIARIES  ACT— SECTION  46  (a) 

page  1 130,  no  distribution  could  be  enforced  "until  one  year  be  fully  expired 
from  the  granting  of  the  administration  of  the  estate."  In  construing  this 
statute,  in  Raestaetter's  Estate,  15  Sup.  Ct.,  549,  that  court  held  that  the 
words  "in  one  year,"  meant  "at  the  expiration  of  one  year."  It  was  the 
practice  in  this  court  prior  to  the  passage  of  the  Fiduciaries  Act  of  1917, 
to  audit  accounts  filed  within  a  year  after  letters  were  granted  .at  any 
time  fixed  for  the  audit  of  cases  after  the  expiration  of  a  year  from  the 
grant  of  letters;  in  other  words,  this  court  did  not  rule  that  an  account 
could  not  be  filed  within  the  year,  but  that,  if  so  filed,  it  could  be  audited 
after  the  expiration  of  a  year  from  thei  grant  of  letters. 

The  law  respecting  the  matters  involved  in  this  adjudication  has  been 
altered  by  the  Fiduciaries  Act  of  1917  as  shown  by  the  following  pro- 
visions in  the  several  sections  of  the  Act  which  are  cited.  There  must  be 
a  bond,  conditioned,  inter  alia,  for  an  accounting  "at  the  expiration  of  six 
months  from  its  date"  8  (o)  ;  a  just  account  of  the  administration  of  the 
estate  filed  in  the  Register's  office  46  (d)  ;  "at  the  expiration  of  six  months 
from  the  time  of  administration  granted,  or  when  thereunto  legally  re- 
quired" 46  (a)  ;  and  there  is  a  prohibition  against  compulsory  distribution 
"until  six  months  be.  fully  expired  from  the  granting  of  the  letters  testa- 
mentary or  of  administration  in  the  estate"  49  (o).  An  account  filed  with 
the  Register  of  Wills  at  the  expiration  of  six  months  from  the  grant  of 
letters,  under  46  (rf)  will  be  transmitted  by  him  to  the  orphans'  court 
at  its  next  stated  meeting  after  the  account  is  filed,  not  less  than  thirty 
days  distant  at  the  time  of  filing  the  account,  and,  after  advertisement  for 
four  weeks,  it  will  be  presented  to  said  court  for  confirmation.  In 
counties  where  separate  orphans'  courts  are  established,  "all  accounts 
filed  in  the  office  of  the  Register  of  Wills,  or  in  the  orphans'  court,  by 
fiduciaries,  shall  be  examined  and  audited  by  the  court"  47  (b)  ;  and,  if 
a  creditor,  who  has  notified  the  fiduciary  of  his  claim  and  has  received 
notice  of  the  filing  of  the  account,  does  not  present  his  claim,  "at  an  audit 
held  not  less  than  six  months  after  the  grant  of  letters  testamentary  or  of 
administration,"  duly  advertised  as  required  in  Sec.  10,  he  will  not  be  en- 
titled to  receive  "a  share  of  the  assets  distributed  in  pursuance  of  such 
audit,  whether  the  estate  be  solvent  or  insolvent"  49  (d).  Under  47  (a) 
the  judges  of  the  orphans'  court  have  power  and  authority  "to  establish 
in  their  discretion  such  rules  and  regulations  as  they  may  deem  proper, 
for  the  publication  of  advertisements  of  notices  of  the  auditing  of  ac- 
counts of  fiduciaries  *  *  *  as  well  as  by  special  order  in  particular 
cases,  as  by  general  rules." 

Now,  when  it  is  required  of  a  fiduciary,  deriving  his  powers  and 
authority  from  letters  granted  by  the  Register  of  Wills,  to  file  an  account 
at  the  expiration  of  six  months,  and  of  the  Register  of  Wills  that  he 
advertise  that  account  for  four  weeks  and  transmit,  after  the  advertisement 
thereof,  to  the  orphans'  court  for  confirmation  at  its  next  stated  meeting 
after  it  is  filed,  being  not  less  than  thirty  days  distant  from  the  time  of 
filing,  it  cannot  be  argued  from  the  sections  of  the  Fiduciaries  Act  relied 
upon  in  coming  to  the  conclusion  in  this  case,  that  the  fiduciary  can  volun- 
tarily file  his  account  within  six  months  from  the  grant  of  letters,  or,  that 
there  can  be  an  audit  and  confirmation  immediately  after  the  expiration  of 


FIDUCIARIES  ACT— SECTION  46  (a),  (6)  413 

six  months  from  the  grant  of  letters.  Creditors  and  all  parties  interested 
in  the  distribution  are  entitled  to  the  Register's  published  notice  of  the 
filing  of  the  account  at  the  expiration  of  the  statutory  period  required  for 
administration,  and  when  the  protection  afforded  by  these  sections  of  the 
Act  herein  referred  to  is  invoked,  there  must  be  a  strict  compliance  there- 
with before  there  can  be  an  exercise  of  the  judicial  functions  of  audit  and 
final  confirmation  necessary  to  make  a  decree  binding  upon  them." 

Cooper's  Est.  29  Dist.  230,  67  P.  L.  J.  17;  36  Lane.  266,  20  Lack.  46, 
32  York,  145. 

One  who  has  a  prima  facie  claim  against  the  estate  of  a  decedent  is 
entitled  to  require  an  account  by  personal  representatives. 

The  orphans'  court  will  not  deny  a  creditor  of  a  decedent  the  right  to 
proceed  to  have  his  claim  adjudicated  in  that  court  and  relegate  him  to 
his  common  law  action. 

"The  question  presented  is  whether  the  petitioner  has  sufficiently  shown 
himself  to  be  a  creditor  so  as  to  be  entitled  to  compel  the  filing  of  an 
account.  The  rights  of  creditors  seem  to  be  the  same  under  the  Fiduciaries 
Act  as  they  were  under  the  prior  existing  law.  *  *  * 

In  any  event  the  right  of  a  creditor  to  proceed  in  the  orphans'  court 
seems  to  be  concurrent  with  his  right  to  proceed  by  a  common  law  action. 
Philip's  Administrator  v.  Railroad  Company,  107  Pa.  465.  We  know  of 
no  case  which  holds  that  the  court  may  relegate  a  creditor  to  his  common 
law  action  and  deny  him  the  right  to  proceed  to  have  his  claim  adjudicated 
at  the  orphans'  court. 

We  are,  therefore,  of  opinion  that  the  petitioner  is  entitled  to  require 
the  filing  of  an  account."  Laverty's  Est.,  50  Pa.  C.  C.  259,  24  Dauphin 
107,  30  Dist.  507. 

540.  ORPHANS'  COURT  MAY  APPOINT  EXAMINERS 
TO  MAKE  EXAMINATIONS  OF  ASSETS  IN 
HANDS  OF  FIDUCIARIES. 

(b)  The  several  orphans'  courts  of  this  commonwealth  shall 
have  power,  by  general  rule  or  special  order,  to  appoint  one  or 
more  examiners  to  make  periodical  or  special  examinations  of  the 
assets  of  estates  in  the  hands  of  fiduciaries,  and  power1  to  require 
all  persons  in  whose  custody  or  control  such  assets  may  be  held, 
to  present  them  for  such  examination.  The  examiners  so  ap- 
pointed shall  be  compensated  by  reasonable  fees  to  be  fixed  by  the 
court  and  to  be  paid  out  of  the  respective  estates. 

NOTE. — This  is  a  new  section. 

At  present  the  orphans'  court  has  not  explicitly  been  given  this  general 
power,  and  the  deplorable  cases  of  embezzlement,  especially  by  trustees, 
that  occur  from  time  to  time  have  induced  the  Commissioners  to  recom- 
mend this  provision  as  at  least  a  partial  preventive. 


414  FIDUCIARIES  ACT— SECTION  46  (c),  (<f) 

541.  CLAIMANTS  WHO  HAVE  NOTIFIED  EXECU- 
TORS, ADMINISTRATORS  OR  TRUSTEES  TO 
BE  ENTITLED  TO  RECEIVE  ACTUAL  NOTICE 
OF  FILING  OF  ACCOUNTS. 

(c)  The  several  orphans'  courts  of  this  commonwealth  shall 
by  general  rule  provide  that  any  person  who,  claiming  to  be  in- 
terested in  the  estate  of  any  decedent  as  creditor,  legatee,  next  of 
kin  or  otherwise,  has  given  written  notice  of  his  claim  to  the  exec- 
utor, administrator  or  trustee,  or  his  attorney,  shall  be  entitled 
to  receive  actual  notice  from  said  executor,  administrator  or 
trustee,  or  his  attorney,  of  the  filing  of  his  account ;  or  such  rule 
of  court  may  provide  for  the  filing  of  such  claims  with,  and  the 
giving  of  notice  by,  the  register  of  wills  or  the  clerk  of  the 
orphans'  court. 

NOTE. — This  is  a  new  clause. 

The  attention  of  the  Commissioners  has  been  called  by  numerous  sug- 
gestions from  members  of  the  Bar  to  the  advisability  of  a  provision  of 
this  nature.  It  is  certainly  fair  and  conducive  to  an  orderly  procedure  in 
the  settlement  of  decedents'  estates  that  a  creditor  or  other  person  in- 
terested, who  has  given  notice  of  his  claim,  should  be  apprised  of  the  filing 
of  the  account.  The  Commissioners  are  of  opinion  that  it  is  better  to 
provide  for  the  procedure  by1  rules  of  court  than  by  a  peremptory  statute, 
as  the  comparative  elasticity  of  rules  of  court  will  enable  the  court  to 
arrive  at  a  just  result  in  each  particular  case. 

The  court  will  not  open  a  duly  filed  and  confirmed  administration  ac- 
count on  the  petition  of  a  next  of  kin  and  a  creditor,  who  failed  to  give 
written  notice  of  their  claims  to  the  accountant  as  required  by  Section  46, 
(c),  of  the  Fiduciaries  Act,  1917,  P.  L.  447,  and  who  had  notice  of  the  filing 
of  the  account  from  one  other  than  the  accountant,  on  the  ground  that 
the  administrator  had  not  given  them  actual  notice  of  the  filing  of  the 
account. 

Interested  parties  who  request  it,  should  have  ample  notice  of  the  time 
and  place  of  the  application  for  the  appointment  of  an  auditor  to  distribute 
the  balance  on  an  administration  account.  Morthland's  Est.,  32  York  137. 

542.  REGISTER'S  DUTIES  AS  TO  TRANSMISSION 
AND  ADVERTISING  OF  ACCOUNTS;  EX- 
PENSES. 

(cf)  Every  register,  with  whom  an  account  has  been  or  shall 
be  filed,  shall  transmit  the  same  to  the  orphans'  court  of  the 
respective  county,  at  its  next  stated  meeting,  being  not  less  than 
thirty  days  distant  from  the  time  of  such  filing,  of  all  which  he 


FIDUCIARIES  ACT— SECTION  46  (d)  415 

shall  give  notice  to  all  persons  concerned,  in  the  following  manner, 
viz :  by  an  advertisement  enumerating  all  the  accounts  to  be  pre- 
sented at  any  one  time  to  the  said  court,  in  at  least  two  secular 
newspapers,  if  there  be  two,  published  in  the  respective  county, 
or  if  there  be  but  one  newspaper  published  in  such  county,  then 
in  that  one,  or  if  there  be  none,  then  in  one  printed  nearest  to  the 
said  county,  at  least  once  a  week  during  the  four  weeks  im- 
mediately preceding  the  meeting  of  the  court  at  which  such  ac- 
count shall  be  presented,  setting  forth,  in  substance,  that  the  ac- 
countants, naming  them  and  the  character  in  which  they  respec- 
tively act,  have  filed  their  accounts  in  the  office  of  the  said 
register,  and  that  the  same  will  be  presented  to  the  orphans' 
court  for  confirmation,  at  a  certain  time  and  place,  mentioning 
the  same;  and  also  by  setting  up  conspicuously  in  his  office,  and 
in  at  least  six  other  of  the  most  public  places  in  the  county,  at 
least  four  weeks  before  the  time  appointed  for  the  presentation 
of  such  accounts  as  aforesaid,  fairly  written  or  printed  copies 
of  such  advertisement.  The  actual  expenses  of  such  advertise- 
ment, according  to  the  usual  rates  of  advertising  in  such  news- 
papers, and  the  setting  up  of  such  notices,  shall  be  divided  among 
all  the  accounts'  presented  at  the  same  court,  and  the  proper  por- 
tion only  shall  be  charged  in  any  of  the  said  accounts,  and 
allowed  to  the  register  as  the  cost  of  such  advertisement  and 
notices. 

NOTE. — This  is  Section  30  of  the  Act  of  March  15,  1832,  I  Purd.  1125 
(Section  37  of  the  Commissioners'  Draft,  except  that  the  provision  as  to 
counties  where  no  newspaper  is  published  was  added  in  the  Act  of  1832). 
It  was  derived  with  slight  alterations  from  the  Acts  of  April  4,  1707,  Sec- 
tion 9,  3  Sm.  L.  296,  and  April,  i,  1823,  Section  i,  P.  L.  286.  The  insertion 
of  the  word  "secular"  in  line  8  covers  the  provision  of  the  Act  of  April 
15,  1867,  P.  L.  86,  i  Purd.  1125,  note  (o). 

Section  29  of  the  Act  of  March  15,  1832,  P.  L.  143,  i  Purd.  1125,  pro- 
viding that  the  register,  "before  he  shall  allow  the  accounts  of  any  executor 
or  administrator,  shall  carefully  examine  the  same,  and  require  the  pro- 
duction of  the  necessary  vouchers,  or  other  satisfactory  evidence  of  the 
several  items  contained  in  it,"  is  recommended  for  repeal,  the  practice 
prescribed  having  fallen  into  disuse. 

Notice  to  creditors  by  advertisement  of  account  is  futile  if  the  account 
is  prematurely  filed.  Hayden's  Est.,  28  Dist.  39. 


416  FIDUCIARIES  ACT— SECTION  46(0),  (/) 

543.  ORPHANS'  COURT  MAY  REQUIRE  ADDITION- 

AL NOTICE  WHERE  PARTIES  IN  INTEREST 
RESIDE  OUT  OF  THE  STATE,  OR  WHERE 
OTHER  CIRCUMSTANCES  RENDER  FUR- 
THER NOTICE  EXPEDIENT. 

(e)  When  any  of  the  heirs,  legatees,  distributees  or  creditors 
of  a  decedent  reside  out  of  this  state,  or  out  of  the  United 
States,  or  from  other  circumstances  it  may  be  expedient  that  ad- 
ditional or  further  notice  should  be  given  of  the  settlement  of 
the  account  of  a  fiduciary,  or  of  the  disposition  of  the  assets 
or  surplusage  of  the  estate,  it  shall  be  in  the  discretion  of  the 
orphans'  court  to  require  such  further  or  additional  notice  to 
be  given  by  such  accountant,  as  they  may  think  proper,  to  ap- 
pear in  court,  or  before  the  auditor  or  auditors  by  them  ap- 
pointed as  the  case  may  be,  at  such  times  as  shall  be  fixed  for 
the  examination  of  such  account,  or  for  the  distribution  of  the 
assets  or  the  surplusage  of  the  estate. 

NOTE. — This  is  Section  20  of  the  Act  of  March  29,  1832,  I  Purd.  1127 
(Section  21  of  the  Commissioners'  Draft),  which  was  new  in  the  Act  of 
1832.  The  only  change  now  made  is  to  substitute  "fiduciary"  for  "executor, 
administrator,  guardian  or  trustee,"  and  to  insert  "auditor  or"  before 
"auditors." 

544.  ACCOUNTS  NOT  TO  BE  CONFIRMED  UNLESS 

IT  APPEARS  THAT  NOTICE  HAS  BEEN 
GIVEN. 

(/)  No  account  of  an  executor,  administrator  or  guardian 
shall  be  confirmed  and  allowed  by  the  orphans'  court,  unless  it 
shall  appear,  at  the  presentation  of  such  account,  that  notice  of 
such  presentation  has  been  given,  conformably  to  the  directions 
of  this  act. 

NOTE. — This  is  Section  15  of  the  Act  of  March  29,  1832,  P.  L.  193,  I  Purd. 
1125  (Section  16  of  the  Commissioners'  Draft),  which  was  new  in  the  Act 
of  1832,  although  apparently  in  conformity1  with  the  then  existing  practice. 

The  only  changes  now  made  are  to  omit  the  reference  at  the  end  of  the 
section  to  "An  act  relating  to  registers  and  registers'  courts,"  (the  provisions 
of  that  act  being  now  incorporated  in  the  present  act),  and  to  omit,  after 
"orphans'  court"  in  the  third  line,  the  words  "except  in  the  cases  herein 
especially  provided  for." 


FIDUCIARIES  ACT— SECTION  46  (g)  417 

545.  WHERE  TRUSTEES'  ACCOUNTS  SHALL  BE 
FILED;  EXCLUSIVE  JURISDICTION  OF  OR- 
PHANS' COURT. 

(^r)  All  trustees  who  are  subject  to  the  jurisdiction  of  the 
orphans'  court  shall  file  their  accounts  in  the  court  appointing 
them  or,  in  the  case  of  testamentary  trustees,  in  the  orphans' 
court  of  the  county  where  the  will  is  or  shall  be  probated.  The 
orphans'  court  shall  have  exclusive  jurisdiction  of  the  accounts 
of  all  trustees  appointed  by  such  court,  and  of  all  testamentary 
trustees,  whether  such  trusts  are  vested  in  executors  or  ad- 
ministrators virtute  ofricii  or  in  trustees  named  in  the  will,  saving, 
however,  the  jurisdiction  of  the  courts  of  common  pleas  under 
existing  laws  in  cases  of  trustees  who  have  filed  their  accounts 
in  such  courts  before  the  approval  of  this  act,  and  cases  of 
substituted  testamentary  trustees  appointed  by  any  court  of 
common  pleas  before  the  approval  of  this  act. 

NOTE. — The  first  part  of  this  clause  is  derived  from  Section  i  of  the  Act 
of  May  3,  1909,  P.  L.  3Qi,  6  Purd.  6565,  altered  so  as  to  apply  only  to 
trustees  who  are  within  the  scope  of  the  present  act,  and  to  provide  in  what 
courts  the  accounts  shall  be  filed.  The  remainder  of  the  clause  is  new  and 
is  intended  to  take  away  the  concurrent  jurisdiction  of  courts  of  common 
pleas  in  cases  of  testamentary  trusts  in  persons  named  in  the  will.  This 
jurisdiction  as  to  trusts  nominatim  was  conferred  by  Section  15  of  the  Act 
of  June  14,  1836,  P.  L.  632,  4  Purd.  4880,  upon  the  court  of  common  pleas 
of  the  county  where  the  trustee  resided  at  the  commencement  of  the  trust, 
and  was  held  to  be  concurrent  in  Brown's  Appeal,  12  Pa.  333,  although  as 
to  trusts  virtute  officii  the  jurisdiction  of  the  orphans'  court  is  exclusive: 
Innes's  Estate,  4  Whart.  179;  Baird's  Case,  I  W.  &  S.  288.  In  Anderson 
v.  Henzey,  7  W.  N.  C.  39,  it  was  remarked  that  the  safest  course  was  to 
invoke  the  aid  of  the  orphans'  court  in  all  cases  of  testamentary  trusts.  The 
jurisdiction  of  the  common  pleas  has  been  rarely  exercised  in  recent  years, 
and  the  late  decision  of  the  supreme  court  in  Simpson's  Estate,  253  Pa. 
217,  reversing  23  Dist.  Rep.  750,  brought  the  matter  to  the  attention  of  the 
Commissioners,  who  are  of  opinion  that  there  is  now  no  good  reason  why 
the  jurisdiction  of  the  orphans'  court  should  not  be  made  exclusive  as  to 
both  classes  of  testamentary  trusts. 

"This  part  of  the  act  was  passed  apparently  to  do  away  with  the  fine 
distinction  that  had  been  made  by  the  courts  in  holding  that  if  the  trust 
was  given  to  the  executors  as  such,  then  the  orphans'  court  has  jurisdic- 
tion, but  if  given  to  individuals  nominatim  although  they  were  later  in 
the  will  named  as  executors,  the  jurisdiction  was  in  the  court  of  common 
pleas  sitting  in  equity."  Opinion  of  WOODWARD,  J.,  in  dismissing  a  bill 
in  equity  for  a  decree  involving  the  construction  of  a  testamentary  trust 
and  distribution  thereunder.  Engle  v.  Engle,  21  Luz.  277. 
27 


4i8  FIDUCIARIES  ACT— SECTION  46  (f),  (A) 

The  Fiduciaries  Act  of  June  7,  1917,  46  (y),  P.  L.  447,  abolished  the 
concurrent  jurisdiction  formerly  exercised  by  the  court  of  common 
pleas  and  the  orphans'  court  over  the  accounts  of  testamentary  trustees 
appointed  nominatim  by  the  will,  and  vested  such  jurisdiction  exclusively 
in  the  orphans'  court  of  the  county  where  the  will  is  probated.  Girard's 
Est.,  48  Pa.  C.  C.  608,  29  Dist.  62. 

Under  section  46  (g)  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447, 
which  provides  that  all  trustees  subject  to  the  jurisdiction  of  the  orphans' 
court  shall  file  their  accounts  in  that  court,  and  (/i)  that  they  may  file 
their  accounts  triennially  from  their  appointment,  any  party  in  interest 
may  compel  the  filing  of  a  triennial  account. 

The  jurisdiction  of  the  court  to  compel  the  filing  of  an  account  by  a 
trustee  after  the  expiration  of  fourteen  years  is  not  ousted  by  the  render- 
ing of  semi-annual  statements  by  the  trustee  to  the  cestui  que  trust,  nor 
by  the  advice  of  counsel  for  the  trustee  that,  in  view  of  the  semi- 
annual accounts  and  the  acceptance  by  the  parties  of  checks  for  the 
amounts  thereby  shown  to  be  due  them,  and  tender  of  vouchers  for  all 
payments,  no  account  should  be  required  to  be  filed.  Noble's  Est.,  27 
Dist.  336,  35  Lane.  369,  66  P.  L.  J.  414,  19  Lack.  341. 

546.    TRIENNIAL  ACCOUNTS  OF  TRUSTEES. 

(h)  All  trustees  who  are  subject  to  the  jurisdiction  of  the 
orphans'  court  may  hereafter,  triennially,  from  the  date  of  their 
appointment,  file  their  accounts  in  said  court,  which  accounts 
shall  be  duly  audited,  and  confirmed  absolutely  to  that  date. 
This  clause  shall  apply  to  and  permit  all  such  trustees,  who 
have  been  acting  in  such  capacity  for  more  than  three  years 
before  the  passage  of  this  act,  to  file  their  accounts,  which  shall 
be  audited  and  confirmed  absolutely  to  the  date  of  such  filing,  and, 
in  like  manner,  to  file  their  accounts  triennially  thereafter. 

NOTE. — This  is  also  derived  from  Section  i  of  the  Act  of  May  3,  1909, 
P.  L.  391,  6  Purd.  6565.  The  law  prior  to  the  Act  of  1009  did  not  expressly 
permit  trustees  to  file  triennial  accounts,  and  it  is  considered  best  to 
authorize  in  terms  the  practice  that  has  been  followed  in  many  parts  of 
the  State.  The  Act  of  1009  applies  to  "all  trustees  of  estates  and  all 
committees  of  the  estates  of  lunatics  and  habitual  drunkards,"  and  it  has 
been  thought  that  it  was  intended  to  include  only  trustees  of  the  estates  of 
lunatics  and  habitual  drunkards. 

Under  section  46  (g)  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447, 
which  provides  that  all  trustees  subject  to  the  jurisdiction  of  the  orphans' 
court  shall  file  their  accounts  in  that  court,  and  (/i)  that  they  may  file 
their  accounts  triennially  from  their  appointment,  any  party  in  interest 
may  compel  the  filing  of  a  triennial  account. 

The  jurisdiction  of  the  court  to  compel  the  filing  of  an  account  by  a 
trustee  after  the  expiration  of  fourteen  years  is  not  ousted  by  the  rendering 


FIDUCIARIES  ACT— SECTIONS  46  W,  («)-47  («)  419 

of  semi-annual  statements  by  the  trustee  to  the  cestui  que  trust,  nor  by 
the  advice  of  counsel  for  the  trustee  that,  in  view  of  the  semi-annual 
accounts  and  the  acceptance  by  the  parties  of  checks  for  the  amounts 
thereby  shown  to  be  due  them,  and  tender  of  vouchers  for  all  payments,  no 
account  should  be  required  to  be  filed.  Noble's  Est,  27  Dist.  336,  35 
Lane.  369,  66  P.  L.  J.  414,  19  Lack.  341. 

547.  NOTICE  OF  FILING  TRUSTEES'  ACCOUNTS. 

(»)  Due  notice  of  the  filing  of  any  account  of  a  trustee  in 
the  orphans'  court  of  any  county  shall  be  given  by  advertisement 
as  prescribed  by  rule  of  said  court,  and  in  such  other  manner 
as  the  said  court  may,  in  each  particular  case,  direct,  to  all  per- 
sons interested  in  the  estate;  and  absolute  confirmation  of  such 
account  shall  not  be  entered  unless  all  such  persons  interested 
are  legally  competent  and  qualified,  either  personally  or  by  their 
guardians  or  committees,  to  appear  in  court  and  object  to  said 
account  if  they  so  desire. 

NOTE. — This  is  founded  on  the  second  proviso  to  Section  i  of  the  Act 
of  May  3,  1909,  P.  L.  391,  6  Purd.  6565,  broadened  so  as  to  apply  to  all 
accounts  of  trustees  and  not  merely  triennial  accounts,  and  modified  so  as  to 
provide  for  notice  by  advertisement  and  such  other  notice,  if  any,  as  the 
court  may  direct,  instead  of  "due  and  actual  notice." 

548.  AUDITS,— RULES    OF    COURT    AS    TO    PUBLI- 

CATION OF  NOTICE  OF  AUDITS. 

SECTION  47.  (a)  The  judges  of  the  orphans'  courts  of  this 
commonwealth,  respectively,  shall  have  power,  and  are  hereby 
authorized,  to  establish,  in  their  discretion,  such  rules  and  regula- 
tions as  they  may  deem  proper  for  the  publication  of  advertise- 
ments of  notices  of  the  auditing  of  accounts  of  fiduciaries  and 
shall  have  supervision  of  and  regulate  the  cost  of  such  publication 
in  all  such  cases,  as  well  by  special  order  in  particular  cases,  as 
by  general  rules. 

NOTE.— This  is  Section  i  of  the  Act  of  March  18,  1875,  P.  L.  29,  3  Purd. 
3370.  In  the  first  line,  the  word  "separate"  has  been  omitted.  The  section 
also  provides  for  publication  of  notices  of  sales  of  real  estate  under  pro- 
ceedings in  said  court,  notices  to  parties  in  proceedings  in  partition,  and 
all  other  cases  within  their  jurisdiction,  and  for  the  establishment  of  a 
bill  of  costs  for  services  of  clerks.  Those  parts  of  the  section  are  covered 
in  other  places. 

See  Cooper's  Est.,  29  Dist.  230,  67  P.  L.  J.  17,  20  Lack.  46,  36  Lane.  266, 
32  York  144. 


420  FIDUCIARIES  ACT— SECTION  47  (&),  (c) 

549.  AUDITS  BY  COURT  IN  COUNTIES  HAVING  SEP- 

ARATE ORPHANS'  COURT. 

(&)  In  any  county  in  which  a  separate  orphans'  court  shall 
be  established,  all  accounts  filed  in  the  office  of  the  register  of 
wills,  or  in  the  orphans'  court  by  fiduciaries,  shall  be  examined 
and  audited  by  the  court,  without  expense  to  the  parties,  except 
where  all  parties  in  interest  in  a  pending  proceeding  shall  nomi- 
nate an  auditor,  whom  the  court  may,  in  its  discretion,  appoint. 

NOTE. — This  is  the  proviso  to  Section  6  of  the  Act  of  May  19,  1874, 
P.  L.  207,  3  Purd.  3369,  which  was  passed  in  pursuance  of  Article  V, 
Section  22  of  the  Constitution  of  1874.  The  words  "by  fiduciaries"  have 
been  added  in  line  3,  and  "examined  and"  in  line  4. 

550.  AUDITS  BY  COURT  OR  AUDITORS  IN  COUNT- 

IES   NOT    HAVING    SEPARATE    ORPHANS' 
COURT. 

(c)  In  any  county  in  which  a  separate  orphans'  court  shall 
not  be  established,  all  accounts  filed  in  the  office  of  the  register 
of  wills  or1  in  the  orphans'  court  by  fiduciaries  shall  be  examined 
by  the  court,  and,  if  not  excepted  to,  shall,  after  due  consideration, 
be  confirmed.  If  any  person  interested  in  the  estate  shall  except 
to  the  account,  or  any  of  the  parties  shall  desire  to  refer  the  ac- 
count to  an  auditor,  the  court  shall  decide  whether  the  matter 
calls  for  such  reference ;  and  if  so,  the  court  may  appoint  a  suit- 
able person  as  auditor.  The  auditor  so  appointed  shall  be  sworn 
or  affirmed  to  perform  his  duties  with  fidelity,  and  shall  have 
power  to  administer  oaths  or  affirmations  to  parties  and  witnesses 
in  the  matter  referred  to  him. 

NOTE. — This  is  Section  i  of  the  Act  of  April  14,  1835  P.  L.  275,  I  Purd. 
1126,  altered  by  confining  it  to  counties  having  no  separate  orphans'  courts, 
by  providing  for  the  appointment  of  one  auditor  only  and  by  omitting  the 
proviso,  which  reads:  "Provided,  That  the  provisions  of  this  section  shall 
not  extend  to  the  city  and  county  of  Philadelphia,"  and  was  extended  to 
Montgomery  County  by  the  act  of  February  18,  1869,  P.  L.  183.  The 
provision  for  appointment  of  auditors  by  the  parties  has  also  been  omitted, 
and  some  changes  have  been  made  in  the  phraseology. 

The  provisions  of  this  clause  supersede  Section  16  of  the  Act  of  March 
29,  1832,  I  Purd.  1126,  which  is  therefore  recommended  for  repeal. 

The  Commissioners  recommend  the  repeal,  so  far  as  relates  to  the 
orphans'  court,  of  the  Act  of  April  i,  1909,  P.  L.  95,  6  Purd.  7296,  as  to 
choice  of  auditors,  etc.;  by  the  parties  (held  unconstitutional  in  Hick's 


FIDUCIARIES  ACT— SECTIONS  47  (c)-48  421 

Estate,  19  Dist.  Rep.  410)  ;  and  the  Act  of  June  4,  1879,  P.  L.  84,  i  Purd. 
390,  as  to  compensation  of  auditors. 

See  form  82. 

551.     REVIEW  OF  ACCOUNTS,  ADJUDICATIONS  AND 
AUDITORS'  REPORT. 

SECTION  48.  Within  five  years  after  the  final  decree,  confirming 
the  original  or  supplementary  account  of  any  fiduciary,  which  has 
been  or  may  be  hereafter  passed,  upon  petition  of  review  being 
presented  by  such  fiduciary  or  his  legal  representatives,  or  by 
any  person  interested  therein,  alleging  errors  in  such  account,  or  in 
any  adjudication  of  the  orphans'  court  or  any  report  of  an 
auditor  on  such  account,  which  errors  shall  be  specifically  set 
forth  in  said  petition  of  review,  said  petition  and  errors  being 
verified  by  oath  or  affirmation,  the  orphans'  court  shall  grant  a 
rehearing  of  so  much  of  said  account,  adjudication,  or  auditor's 
report,  as  is  alleged  to  be  error  in  said  petition  of  review,  and 
give  such  relief  as  equity  and  justice  may  require,  by  reference 
to  auditors,  or  otherwise,  with  like  right  of  appeal  to  the  proper 
appellate  court  as  in  other  cases :  Provided,  That  this  act  shall  not 
extend  to  any  cause  when  the  balance  found  due  shall  have  been 
actually  paid  and  discharged  by  any  fiduciary. 

NOTE.— This  is  Section  i  of  the  Act  of  October  13,  1840,  P.  L.  (1841)  i, 
i  Purd.  1128,  changed  by  substituting  the  words  "proper  appellate"  for 
"supreme,"  and  by  omitting  "as  aforesaid"  after  "hereafter  passed." 

The  word  "fiduciary"  is  substituted  for  "executor,  administrator  or 
guardian,"  making  the  act  include  testamentary  trustees.  A  provision  is 
inserted  making  the  review  include  adjudications  and  auditors'  reports. 

See  forms  83,  84. 

Under  Section  48  of  the  Act  of  June  7,  1917,  P.  L.  514,  the  orphans' 
court  may  revise  and  correct  a  former  adjudication  where  it  appears  that 
such  adjudication  contained  a  mistake  by  the  parties  and  the  rights  of 
third  parties  have  not  intervened. 

The  orphans'  court  is  not  bound  by  the  rules  of  practice  which  prevail 
in  a  court  of  Chancery. 

"The  rule  governing  application  for  bills  of  review,  laid  down  in  our 
decisions  since  the  passage  of  the  Act  of  October  13,  1840,  P.  L,.  (1841) 
i,  Sec.  i,  giving  the  court  authority  to  grant  a  review,  now  controlled  by 
the  Act  of  June  7,  1917,  P.  L.  514,  Sec.  48  has  been  re-asserted  by  Judge 
GEST  in  Nixon's  Estate,  239  Pa.  270,  273,  which  was  affirmed  on  his 
opinion  wherein  he  said :  'It  is  well  settled  that  a  petition  for  a  review  of 
an  account  settled  and  confirmed  in  the  orphans'  court  must  show  either 
an  error  of  law  apparent  on  the  face  of  the  record  or  else  new  matter 


422  FIDUCIARIES  ACT— SECTION  48 

which  has  arisen  since  the  decree,  or  such  review  may  be  allowed  ex 
gratia  upon  the  subsequent  discovery  of  new  evidences  to  the  facts  upon 
which  the  decree  was  grounded  which  could  not  have  been  procured  by 
the  use  of  due  diligence.' "  SCHAEFFER,  P.  J.,  in  Beard's  Est,  34  York  190. 

Section  48  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  477,  514,  relating 
to  petitions  of  review,  is  an  advance  on  Section  I  of  the  Act  of  October 
13,  1840,  (P.  L.  1841,  page  i),  treating  of  the  same  subject,  in  that  the 
former  requires  a  review  to  be  granted  if  error  is  made  in  the  adjudication. 

Where  an  error  appears  in  an  adjudication,  and  the  balance  found  due  has 
not  been  actually  paid  and  discharged,  a  rehearing  is  a  matter  of  right, 
unless,  at  the  audit,  the  question  at  issue  was  raised,  contested  and  decided 
adversely  to  petitioner. 

The  orphans'  court  has  inherent  power  to  and  should  grant  a  review, 
aside  from  the  provisions  of  either  act,  where  justice  and  equity  require 
it  and  no  one  will  suffer  by  reason  thereof.  Troutman's  EsL  270  Pa.  310. 

The  Act  of  October  13,  1840,  P.  L.  (1841)  page  I,  as  amplified  by  the 
48th  Sec.  of  the  Fiduciaries  Act  of  1917,  P.  L.  514  gives  the  orphans' 
court  jurisdiction  to  review  and  revise  an  account  within  five  years  after 
confirmation  upon  petition  of  review  being  presented;  and  under  this 
jurisdiction  and  the  general  equity  powers  of  the  orphans'  court  a 
matter  being  duly  before  the  court  an  order  may  be  made  for  the  re- 
statement of  the  fiduciary's  account,  where  the  circumstances  and  equity 
require  it,  although  no  petition  for  review  has  been  filed.  Bender's  EsL, 
33  York  125. 

Decedent  died  leaving  a  will,  bequeathing  certain  specific  legacies  to  a 
church,  also  the  residue  of  her  estate  to  said  church.  One  of  the  witnesses 
to  the  will  was  a  member  of  the  congregation.  The  account  of  the  execu- 
tor was  duly  filed,  audited  and  confirmed,  and  distribution  made  to  the 
testamentary  trustee. 

About  one  year  after  the  filing  of  the  account  by  the  testamentary 
trustee,  and  after  distribution  had  been  made  under  the  terms  of  the  will, 
the  petitioner  and  next  of  kin  filed  his  petition  asking  that  the  confirmation 
of  the  adjudication  be  vacated  and  for  restitution  of  awards. 

"It  was  well  settled  under  the  law  that  in  order  to  open  an  adjudication 
after  distribution  has  been  made,  unless  there  is  an  apparent  error  of  law 
on  the  record  or  fraud  be  shown  to  have  entered  into  the  decree  or  induced 
it,  that  no  review  of  the  adjudication  will  be  allowed.  In  this  case  there 
is  no  error  of  law  appearing  on  the  face  of  the  record,  no  new  matter  has 
arisen  since  the  adjudication,  and  no  new  evidence  which  was  not  in  the 
control  of  the  petitioner,  or  could  by  due  diligence  have  been  procured  and 
offered  before  the  adjudication  no  fraud  being  shown,  and  the  fund 
having  been  paid  and  record  satisfied,  the  petition  must  be  dismissed." 

Riser's  Est,  35  Montg.  169. 

The  decedent  died  possessed  of  no  shares  of  the  common  stock  of 
the  A  Company,  which,  on  March  16.  1914,  was  adjudged  a  bankrupt  and 
petitioner  became  trustee.  On  Oct.  9,  1914,  the  executors  filed  their 
account,  which  was  confirmed  absolutely  Oct.  24th,  and.  then,  transferred 
the  fund  to  two  of  their  number  as  trustees ;  the  third,  who  was  a  non- 
resident, was  discharged  Nov.  loth.  In  August,  1919,  the  trustee  in 


FIDUCIARIES  ACT— SECTIONS  48-49  (<0  423 

bankruptcy  filed  this  petition,  alleging  the  above  facts  and,  inter  alia,  that 
shortly  after  he  became  trustee  he  applied  to  the  United  States  District 
Court  for  the  levy  of  an  assessment  on  all  holders  of  unpaid  common 
stock  of  the  A  Company  to  raise  funds  to  meet  its  corporate  indebtedness, 
and  that,  Nov.  7,  1918,  the  Court  levied  an  assessment  of  45.2  per  cent, 
amounting  to  $4,972,  against  the  decedent.  The  petitioner,  therefore, 
prayed  that  the  adjudication  of  the  executors'  account  be  opened,  the 
confirmation  set  aside,  and  a  readjudication  made  thereon,  awarding  the 
trustee  said  sum,  with  interest  from  Nov.  7,  1918.  On  demurrer :  Held, 
that  as  the  corporation  knew  at  the  time  of  the  audit  that  the  stock  held  by 
the  decedent  had  not  been  paid  for  and  that  an  assessment  would  be 
necessary  to  pay  creditors,  the  facts  alleged  in  the  petition  did  not  con- 
stitute new  matter,  and,  hence,  the  petitioner  was  not  entitled  to  present  his 
claim,  and  the  petition  should  be  dismissed.  Graham's  Est.,  48  Pa.  C.  C. 
371,  28  Dist.  1023. 

552.  DISTRIBUTION  OF  ESTATES,— NOT  TO  BE 
COMPELLED  WITHIN  SIX  MONTHS;  AFTER 
SIX  MONTHS  MAY  BE  ORDERED  ON  PETI- 
TION OF  CREDITOR  OR  ANY  PERSON  IN- 
TERESTED. 

SECTION  49.  (a)  No  executor  or  administrator  shall  be  com- 
pelled to  make  distribution  of  the  estate  of  his  testator  or  in- 
testate until  six  months  be  fully  expired  from  the  granting  of 
the  letters  testamentary  or  of  administration  in  the  estate.  After 
the  expiration  of  said  period,  distribution  may,  be  ordered  by  the 
orphans'  court  having  jurisdiction  of  the  accounts  of  the  executor 
or  administrator,  on  petition  of  any  person  having  an  interest  in 
the  assets  to  be  distributed,  or  on  petition  of  any  creditor  of  the 
decedent. 

NOTE. — This  is  a  modification  of  Section  38  of  the  Act  of  February  24, 
1834,  i  Purd.  1130,  which  related  to  administrators  only.  It  was  copied 
from  Section  15  of  the  Act  of  April  19,  1794,  3  Sm.  L,.  143,  except  that 
under  the  Act  of  1794  the  year  ran  from  the  death  of  the  intestate. 

The  period  has  now  been  reduced  to  six  months.  Section  47  of  the  Act 
of  1834,  i  Purd.  1131,  which  is  set  forth  below,  after  clause  (d),  applied 
to  executors. 

The  Commissioners  recommend  the  repeal  of  the  first  part  of  Section  19 
of  the  Act  of  March  29,  1832,  P.  L.  194,  I  Purd.  1127,  providing  for  the 
appointment  of  auditors  in  insolvent  estates  "to  settle  and  adjust  the 
rates  and  proportions  of  the  assets  to  and  among  the  respective  creditors, 
according  to  the  order  established  by  law,"  and  the  last  part  ofj  Section  I 
of  the  Act  of  April  13,  1840,  P.  L.  319,  i  Purd.  1127,  providing  for  the 
appointment  of  auditors  to  make  distribution  on  the  application  of  any 
legatee,  heir  or  other  person  interested. 

See  forms  28,  30,  54,  55. 


424  FIDUCIARIES  ACT-SEcrioN  49  (a),  (6) 

One  who  has  a  prima  facie  claim  against  the  estate  of  a  decedent  is 
entitled  to  require  an  account  by  personal  representatives. 

The  orphans'  court  will  not  deny  a  creditor  of  a  decedent  the  right 
to  proceed  to  have  his  claim  adjudicated  in  that  court  and  relegate  him  to 
his  common  law  action. 

"Section  4Qa  of  this  Act  provides  that  after  the  expiration  o-f  six 
months  distribution  may  be  ordered  by  the  orphans'  court  'On  petition  of 
any  person  having  an  interest  in  the  assets  to  be  distributed,  or  on  petition 
of  any  creditor  of  the  decedent.' 

"The  question  presented  is  whether  the  petitioner  (a  creditor)  has 
sufficiently  shown  himself  to  be  a  creditor  so  as  to  be  entitled  to  compel 
the  filing  of  an  account  The  rights  of  creditors  seem  to  be  the  same 
under  the  Fiduciaries  Act  as  they  were  under  the  prior  existing  law." 

Laverty's  Est.,  24  Dauphin  107,  30  Dist  507,  50  Pa.  C.  C.  259. 

See  also  Cooper's  Est.,  29  Dist  230,  67  P.  L.  J.  17,  36  Lane.  266,  20 
Lack.  46,  32  York  144. 

553.  DISTRIBUTION  WITHOUT  AUDIT  OF  AC- 
COUNT AT  RISK  OF  EXECUTORS  OR  ADMIN- 
ISTRATORS; DISTRIBUTION  UNDER  ORDER 
OF  COURT  TO  PROTECT  EXECUTORS  OR  AD- 
MINISTRATORS AND  TO  BE  WITHOUT  RE- 
FUNDING BONDS. 

(b)  Executors  or  administrators  may  make  distribution,  and 
pay  or  deliver  legacies,  without  the  audit  of  their  accounts,  upon 
such  security  as  may  be  satisfactory  to  them,  neverthelesss  at 
their  own  risk,  but  without  liability  to  any  creditors  of  the 
decedent  who  shall  not  have  given  written  notice  to  the  executor 
or  administrator  within  six  months  after  the  granting  of  letters 
testamentary  or  of  administration,  provided  that  such  executor  or 
administrator  has  complied  with  the  provisions  of  Section  10  of 
this  Act.1  Where  distribution  of  a  decedent's  estate  is  awarded 
by  the  orphans'  court,  after  audit  and  confirmation  of  any  ac- 
count of  the  executors  or  administrators,  such  decree  of  distribu- 
tion shall  protect  the  executors  or  administrators  from  personal 
liability  with  respect  to  the  property  so  distributed.  In  making 
distribution  under  such  a  decree,  the  executors  or  administrators 
shall  not  be  entitled  to  demand  refunding  bonds  from  the  distrib- 
utees, except  in  the  cases  specially  provided  for  by  this  act,  and 
in  other  cases  in  which  the  court  shall  direct  the  giving  of  re- 
funding bonds. 

*See  397  supra. 


FIDUCIARIES  ACT— SECTION  49  (b)  425 

NOTE. — This  is  a  new  clause.  The  first  sentence  is  founded  upon  Section 
58  of  the  Act  of  1834,  i  Purd.  1132,  which  was  derived  from  Section  16 
of  the  Act  of  1794.  It  is  here  altered  by  substituting  "the  audit  of  their 
accounts"  for  "application  as  aforesaid,"  and  by  adding  the  words  be- 
ginning "but  without  liability." 

The  remainder  of  the  section  as  drafted  is  declaratory  of  the  law  as 
laid  down  in  the  decisions:  Ferguson  v.  Yard,  164  Pa.  586;  Lejee's  Estate, 
5  D.  R.  311 ;  Piper's  Estate,  208  Pa.  636. 

Section  57  of  the  Act  of  1834,  i  Purd.  1131,  provides:  "Executors,  or 
administrators  making  distribution,  or  paying  or  delivering  any  legacies  as 
aforesaid,  shall  not  be  liable  for  the  assets  so  paid  or  distributed  in 
respect  to  any  claim  or  demand  upon  the  decedent  not  previously  made 
known  to  them,  where  security  shall  be  taken,  as  is  hereinbefore  provided." 
This,  eliminating  the  requirement  of  security,  is  covered  by  the  new 
clause. 

Sectional  of  the  Act  of  1834,  i  Purd.  1131,  which  required  refunding 
bonds  to  be  given  by  distributees  in  all  cases,  has  become  obsolete  and  its 
repeal  is  recommended.  It  was  derived  in  part  from  Section  15  of  the  Act 
of  1794. 

1  See  391  supra. 

Section  49  (&)  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  makes 
it  necessary  for  creditors  of  a  decedent  to  give  an  executor  or  administrator 
written  notice  of  their  claims  "within  six  months  after  the  granting  of 
letters"  where  notice  of  death  has  been  given  by  publication. 

The  court,  in  declining  to  audit,  raised  the  following  question,  which, 
however,  it  did  not  decide: 

"Attention  is  called  to  the  first  half  of  Section  49  (&),  which  makes  it 
necessary  for  creditors  to  give  to  the  fiduciary  written  notice  of  their 
claims  "within  six  months  after  the  granting  of  letters,"  where  the 
fiduciary  has  duly  published  notice  thereof,  and  relieves  the  executor  or 
administrator  from  all  liability  to  the  creditor  if  this  notice  is  not  given. 
Under  this  section  these  queries  arise:  (a)  Has  not  the  legislature  given 
to  the  fiduciary  the  right  to  distribute  to  those  creditors  only  who  have 
given  written  notice  of  their  claims,  and  to  any  other  distributees  without 
audit?  (b)  How  may  a  creditor  who  has  failed  to  give  the  statutory 
notice  of  his  claim,  compel  an  accounting  by  virtue  of  the  right  given  to 
him  under  Sec.  46  (o)  and  Sec.  49  (o),  if  the  fiduciary  has  distributed 
all  of  the  assets  to  those  who  have  complied  with  the  law  ?  Has  a  creditor 
who  has  failed  to  give  this  notice,  which,  under  the  other  sections  of  the 
Act  regulating  an  orderly  administration,  followed  by  advertisement  of  the 
accounting,  audit,  confirmation,  and  equitable  distribution,  is  not  required, 
any  longer  any  standing  as  a  creditor,  if  distribution  has  been  made,  and 
is  the  fiduciary  not  entitled  to  a  decree  of  confirmation,  because  under 
Sec.  46  (o)  it  is  the  duty  of  every  executor  to  account?  The  exemption 
from  liability  given  by  this  section  to  the  fiduciary  is  new  in  the  law  of 
Pennsylvania,  and  referred  to  only  because  it  is  necessary  to  expressly 
distinguish  between  the  questions  which  may  arise  in  determining  the 
rights  of  parties  thereunder,  and  those  under  the  other  sections  of  the  Act 
which  are  cited  and  relied  upon  as  the  basis  of  the  decree  to  be  entered  in 


426  FIDUCIARIES  ACT— SECTION  49  (fr),  (c),  (d) 

this  case."  TRIMBLE,  J.,  in  Cooper's  Est,  29  Dist.  230,  67  P.  L.  J.  17,  36 
Lane.  266,  20  Lack.  46,  32  York  144. 

Under  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  the  account  of  an 
executor  or  administrator  should  not  be  filed  until  the  expiration  of  six 
months  from  the  date  of  the  first  insertion  of  the  advertisement  of  the 
grant  of  letters.  The  act  contemplates  an  immediate  advertisement,  and 
if  the  account  be  filed  within  six  months  of  the  first  insertion  of  the 
advertisement,  the  auditing  judge  may  withhold  confirmation. 

While  the  act  introduced  no  innovation  in  the  law  touching  the  ad- 
vertisement of  the  grant  of  letters,  it  shortened  the  period  allowed  for 
administration  from  one  year  to  six  months,  and,  hence,  it  becomes  neces- 
sary for  the  court  to  see  that  creditors  have  had  due  notice  of  the  grant 
of  letters. 

Creditors!  have  the  right  to  assume  that  the  account  need  not  be  looked 
for  until  six  months  have  expired  from  the  first  insertion  of  the  ad- 
vertisement Cotter's  Estate,  27  Dist.  1023,  67  P.  L.  J.  19,  47  Pa.  C.  C.  76. 

554.  DISTRIBUTION  OF  ESTATE  NOT  EXCEEDING 

THREE  HUNDRED  DOLLARS. 

(c)  When  the  personal  estate  of  a  decedent  does  not  exceed 
the  value  of  three  hundred  dollars,  the  executor  or  administrator 
may,  after  the  expiration  of  one  year  after  the  date  of  granting 
the  letters  testamentary  or  of  administration,  present  his  petition 
to  the  proper  orphans'  court,  with  an  annexed  account  showing 
the  administration  and  legal  distribution  of  the  estate,  the  state- 
ments in  the  petition  and  the  account  to  be  verified  by  the  affidavit 
of  such  executor  or  administrator.  Thereupon  the  court  may, 
upon  satisfactory  proof  or  acknowledgment  of  notice  to  all 
parties  known  to  be  interested  in  said  estate  that  said  petition  and 
account  have  been  presented,  order,  at  the  end  of  thirty  days  from 
the  date  of  filing  the  petition  and  account,  the  discharge  of  the 
executor  or  administrator  and  his  sureties  from  future  liability, 
without  the  expense  of  proceedings  as  in  a  formal  account,  unless 
during  said  period  of  thirty  days  exceptions  be  filed  to  the  account. 

NOTE.— This  is  Section  I  of  the  Act  of  May  6,  19:5,  P.  L.  265,  5  Purd. 
5895,  changed  by  inserting  "personal,"  in  the  first  line,  by  adding  "and 
his  sureties  from  future  liability,"  and  by  altering  the  language  at  the 
end,  so  as  to  make  it  clear  that  discharge  may  be  made  at  the  end  of 
the  thirty  days,  unless  meanwhile  exceptions  are  filed. 

555.  CREDITOR  FAILING  TO  PRESENT  CLAIM  AT 

AUDIT  NOT  ENTITLED  TO  SHARE  IN  DIS- 
TRIBUTION. 

(</)  No  creditor  of  a  decedent  who  shall  neglect  or  refuse  to 
present  his  claim  at  the  audit  of  the  account  of  the  executor  or 


FIDUCIARIES  ACT— SECTION  49  (rf)  427 

administrator,  held  not  less  than  six  months  after  the  grant  of 
letters  testamentary  or  of  administration  of  which  public  notice 
has  been  given  as  provided  in  Section  10  of  this  act,1  or  at  an 
audit  held  after  actual  notice  to  such  creditor  of  the  filing  of  such 
account,  as  provided  in  Section  46,  clause  (c)  of  this  act2  shall 
be  entitled  to  receive  any  share  of  the  assets  distributed  in  pur- 
suance of  such  audit,  whether  the  estate  of  the  decedent  be 
solvent  or  insolvent. 

NOTE. — This  is  founded  on  the  proviso  to  Section  19  of  the  Act  of 
March  29,  1832,  P.  L.  194,  i  Purd.  1127,  which  has  been  redrafted  to 
correspond  to  the  changes  made  in  previous  sections. 

The  Commissioners  recommend  the  repeal  of  the  following  sections 
of  the  Act  of  February  24,  1834,  as  obsolete  and  unnecessary : — 

Section  39,  i  Purd.  1130,  providing  that  when  distribution  shall  be 
required  by  any  person  interested,  the  executor  or  administrator  shall 
present  to  the  court  "a  statement  of  all  demands  against  the  estate  which 
have  been  made  known  to  him,  and  after  deducting  the  amount  thereof 
from  the  assets  in  his  hands,  together  with  such  further  sum  as  may 
be  necessary  to  pay  the  interest  and  costs  of  suit  of  such  as  may  be  in 
dispute,  and  of  such  as  he  may  deem  it  his  duty  to  dispute,  make  dis- 
tribution of  the  residue  under  the  direction"  of  the  court. 

Section  40,  I  Purd.  1131,  providing  that  after  six  months  from  a  dis- 
tribution made  as  aforesaid,  like  proceedings  may  be  had  for  distribution 
of  further  assets,  and  so  from  time  to  time,  until  the  whole  estate  shall 
be  distributed. 

Section  47,  i  Purd.  1131,  providing  that  after  one  year  from  the 
granting  of  administration,  executors  shall,  on  the  requisition  of  any 
legatee  or  any  other  person  interested,  pay  and  deliver,  under  the  direction 
of  the  court,  all  legacies  due  and  payable,  or  a  proportionate  part  thereof, 
first  deducting  all  demands  against  the  estate  and  such  sums  as  may  be 
necessary  to  pay  the  interest  and  costs  of  such  as  are  disputable  or  in 
dispute,  and  shall  also  distribute  any  residue  distributable  under  the 
intestate  laws. 

1See  391  supra. 

2See  541  supra. 

Where  a  legatee  presented  claim  for  moneys  alleged  to  be  due  from 
executor  of  an  estate,  before  an  auditor  appointed  to  distribute  the  balance 
on  the  account  of  the  administratrix  of  such  executor  and  no  amount 
was  given  and  no  testimony  was  presented  in  support  of  the  claim  and 
the  auditor  did  not  allow  the  claim  and  no  exceptions  were  taken  to  his 
report  it  was  held  the  matter  might  be  treated  as  res  judicata. 

Where  more  than  twenty-one  years  have  elapsed  from  the  time  moneys 
due  legatees  are  payable,  a  legal  presumption  of  payment  arises,  which 
must  be  met  and  overcome  by  evidence  to  the  contrary,  which  is  direct, 
positive  and  conclusive.  Feigley's  Est,  35  York  17. 

See  also  Cooper's  Est.,  29  Dist.  230,  67  P.  I .  J.  17,  20  Lack.  46,  36 
Lane.  266,  32  York  144. 


428  FIDUCIARIES  ACT— SECTION  49  (<?)  i,  2  . 

556.  DISTRIBUTION    IN    KIND,— COURT    MAY    DI- 

RECT   DISTRIBUTION    OF    UNCONVERTED 

SECURITIES. 

(e)  i.  Whenever  it  shall  appear  at  the  audit  and  distribution 
of  an  estate  in  the  orphans'  court,  that  the  balance,  after  payment 
of  debts,  includes  stocks,  bonds,  or  other  securities,  which,  for 
reasons  satisfactory  to  said  court,  have  not  been  converted  by 
the  accountants,  it  shall  be  lawful  for  said  court  to  direct  distribu- 
tion of  such  assets  in  kind  to  and  among  those  lawfully  entitled 
thereto,  including  fiduciaries. 

NOTE.— This  is  Section  i  of  the  Act  of  June  10,  1911,  P.  L.  870,  5 
Purd.  5895,  with  the  addition  of  the  words  "including  fiduciaries." 

"Where  the  residue  of  the  estate  consists  of  stocks  and  various  trust 
funds  are  created  by  the  will,  it  is  a  proper  case  for  the  executors  to 
present  a  petition  under  section  49  (e)  of  the  Fiduciaries  Act,  1917, 
P.  L.  447,  authorizing  them  to  distribute  the  stocks  in  kind  to  the 
trustees.  The  date  of  the  confirmation  of  the  auditor's  report  fixes 
the  value  of  the  stock  which  is  to  be  transferred. 

Where  the  court  is  asked  to  make  a  distribution  in  kind  under  the 
above  act,  a  schedule  should  be  presented  giving  the  court  full  information 
as  to  the  number  of  shares  of  stock  to  be  distributed  and  the  market 
value  of  the  same,  and  the  distribution  which  the  trustees  in  their  judg- 
ment think  should  be  made.  That  schedule  can  then  be  either  adopted  by 
the  court  or  modified.  Skeer*s  Est,  30  Dist  542,  17  North,  302,  49  Pa. 
C.  C.  535- 

Under  the  Fiduciaries  Act  of  June  7,  1917,  it  is  within  the  discretion 
of  the  orphans'  court  to  distribute  unconverted  assets  in  kind. 

Where  the  record  did  not  show  any  effort  had  been  made  to  sell  un- 
converted assets  in  the  hands  of  an  accountant  in  a  decedent's  estate, 
but  did  show  that  the  beneficiaries  or  distributees  under  the  will  had 
agreed  to  accept  in  kind,  and  it  appeared  that  the  assets  could  not  be 
equally  distributed,  the  Court  ordered  a  public  sale  and  a  return  of  the 
proceeds.  Shaw's  Est,  65  P.  L.  J.  830. 

See  also  Evans'  Est.,  30  Dist.  253,  50  Pa.  C.  C.  241. 

557.  DUTY   OF  FIDUCIARY  TO  WHOM   SUCH   DIS- 

TRIBUTION    IS     MADE;      APPLICATION     TO 
COURT  FOR  AUTHORITY  TO  SELL. 
2.  Where   stocks,  bonds,  or  other  securities  have  been   dis- 
tributed in  kind,  as  above  provided,  to  any  fiduciary,  it  shall  be 
the  duty  of  such  fiduciary  to  use  reasonable  diligence  in  con- 
verting such  securities  as  shall  not  be  investments  now  or  here- 
after authorized  by  law ;   and  if  such  fiduciary  be  doubtful  as  to 
the  propriety  of  making  sale  of  such  securities,  he  may  apply  to 
the  orphans'  court  having  jurisdiction  of  his  accounts,  by  petition, 


FIDUCIARIES  ACT— SECTIONS  49  (*)  2,  (/)-SQ  (a)  429 

for  authority  and  direction  to  sell  the  same;  whereupon,  after 
due  notice  to  all  parties  interested,  the  said  court  shall  make  such 
order  in  the  premises  as  to  it  may  appear  proper. 

NOTE. — This  is  Section  2  of  the  Act  of  1911,  with  the  substitution  of  the 
word  "fiduciary"  for  "guardian,  trustee,  or  other  fiduciary,"  and  some 
slight  verbal  changes. 

This  section  is  intended  to  cover  the  case  where  securities  distributed  in 
kind  to  a  fiduciary  are  not  legal  investments  but  their  immediate  sale  would 
result  in  substantial  losses  and  the  fiduciary  might,  except  for  the  pro- 
visions of  this  section,  be  compelled  to  make  the  sale  forthwith  on  his  own 
responsibility. 

Section  3  of  the  Act  of  1911  validated  previous  distributions  and  its 
reenactment  is  unnecessary. 

558.  DISTRIBUTION    BY    EMPLOYER    OF    WAGES 

DUE  DECEDENT  NOT  EXCEEDING  $75. 

(/)  It  shall  be  lawful  for  any  employer  in  this  commonwealth 
at  any  time  not  less  than  thirty  days  after  the  death  of  his 
employee  to  pay  all  wages  due  to  such  deceased  employee  to  the 
wife,  children,  father  or  mother,  sister  or  brother  (preference 
being  given  in  the  order  named)  of  the  deceased  employee,  with- 
out requiring  letters  testamentary  or  of  administration  to  be 
issued  upon  the  estate  of  said  deceased  employee,  where  such 
wages  due  do  not  exceed  seventy-five  dollars1  in  amount.  If 
such  deceased  employee  shall  not  leave  a  wife  or  any  of  said 
relatives  surviving  him,  then  it  shall  be  lawful  for  the  employer 
in  like  manner  to  pay  such  wages  to  the  creditors  of  the  deced- 
ent, as  follows:  undertaker,  physician,  boarding-house  keeper, 
and  nurse,  each  his  or  her  pro  rata  share,  upon  affidavit  of  fact 
furnished.  The  payment  of  such  wages  as  aforesaid  shall  be  a 
full  discharge  and  release  to  the  employer  from  any  further 
claim  for  such  wages. 

NOTE. — This  is  founded  on  the  Act  of  May  23,  1907,  P.  L.  201,  7  Purd. 
7729- 

Increased  to  one  hundred  and  fifty  dollars  by  Act  of  March  26,  1919 
(P.  L.  22). 

559.  REFUNDING   BONDS,— FIDUCIARY   WHO    HAS 

GIVEN  BOND  MAY  REQUIRE  BONDS  FROM 
PERSONS  TO  WHOM  HE  MAKES  PAYMENT. 

SECTION  50.  (a)  Where  any  fiduciary  has  been  required,  or 
hereafter  shall  be  required,  upon  the  receipt  of  money,  to  give  a 
refunding  bond,  it  shall  be  lawful  for  such  fiduciary,  upon  paying 


430  FIDUCIARIES  ACT— SECTION  50  (c),  (fc) 

over  such  money  to  creditors,  or  to  parties  beneficially  interested, 
to  require,  under  the  direction  of  the  orphans'  court  having 
jurisdiction  of  his  accounts,  a  bond,  refunding  receipt  or  other 
obligation  from  each  person  receiving  such  money,  to  indemnify 
such  fiduciary  to  the  amount  such  person  may  receive. 

NOTE.— This  is  Section  i  of  the  Act  of  April  13,  1859,  P.  L.  604,  I  Purd. 
1132,  modified  by  substituting  "fiduciary"  for  "executor,  administrator  or 
guardian,"  and  "the  parties  beneficially  interested"  for  "heirs,  legatees  or 
ward." 

The  Act  of  June  10,  1881,  P.  L.  106,  i  Purd.  1132,  note  (m)  amended 
the  Act  of  1859  by  adding  a  clause  authorizing  a  ward  who  had  reached 
lawful  age  and  was  a  married  woman  to  give  her  own  refunding  bond. 
This  is  now  omitted  as  unnecessary  since  the  married  women's  acts.  For 
the  same  reason,  Section  4  of  the  Act  of  April  n,  1856,  P.  L.  315,  3  Purd. 
2454,  authorizing  a  married  woman  entitled  to  a  legacy  or  distributive 
share  to  give  a  refunding  bond  and  to  execute  all  other  instruments  and 
perform  all  other  acts  on  payment  to  her  of  moneys  so  distributed,  is 
recommended  for  repeal. 

560.     LIMITATION    OF    ACTIONS    ON    REFUNDING 
BONDS. 

(b)  In  all  cases  where  refunding  bonds  shall  be  given  upon 
the  distribution  of  the  estate  of  any  decedent,  no  action  or  suit 
thereon  shall  be  brought  after  the  expiration  of  six  years  from 
the  date  of  such  bond:  Provided,  That  where  the  creditors  or 
other  persons  entitled  to  the  protection  of  said  bonds,  shall  be 
within  the  age  of  twenty-one  years,  non  compos  mentis,  impris- 
oned, or  from  or  without  the  United  States  of  America,  or  where 
a  creditor  whose  debt  shall  not  mature  within  such  period,  shall 
file  within  the  said  period  in  the  office  of  the  clerk  of  the  orphans' 
court  where  said  distribution  shall  have  been  made,  a  copy  of 
particular  statement  of  any  bond,  covenant,  debt  or  demand 
upon  which  his  claim  arises,  then  and  in  any  such  cases  an  action 
may  be  brought  by  the  creditor  at  any  time  not  exceeding  two 
years  from  the  coming  of  age,  or  removal  of  such  disability  of 
the  creditor  or  other  person  entitled  to  the  protection  of  said 
bonds,  or  the  maturing  of  the  debt  or  demand  aforesaid. 

NOTE.— This  is  Section  i  of  the  Act  of  June  30,  1885,  P.  L.  203,  i  Purd. 
1132.  The  only  changes  are  to  omit  after  "distribution"  in  line  2,  the 
words,  "or  partition,"  to  substitute  "the  orphans'  court  where  said  dis- 
tribution shall  have  been  made"  for  "said  court,"  no  court  having  been 
previously  referred  to,  and  to  insert  "or  other  persons  entitled  to  the 


FIDUCIARIES  ACT— SECTIONS  50  (fc)-5i  (a)  431 

protection  of  said  bonds,"  and  to  make  the  period  of  limitation  six  years 
instead  of  five. 

Section  2,  which  gave  five  years  from  the  passage  of  the  Act  to  sue  on 
bonds  theretofore  given,  need  not  be  reenacted. 

561.  TRANSCRIPTS  OF  BALANCES  DUE  BY  FIDU- 
CIARIES, FILING  TRANSCRIPTS  IN  COM- 
MON PLEAS  AND  EFFECT  THEREOF;  EX- 
ECUTIONS. 

SECTION  51.  (a)  It  shall  be  the  duty  of  the  prothonotaries  of  the 
courts  of  common  pleas  to  file  and  docket,  whenever  the  same 
shall  be  furnished  by  any  parties  interested,  certified  transcripts 
or  extracts  from  the  record  showing  the  amount  appearing  to  be 
due  from,  or  in  the  hands  of  any  fiduciary,  on  the  settlement  of 
his  accounts  in  the  orphans'  court  of  the  same  or  any  other 
county,  or  by  virtue  of  a  decree  of  said  court,  which  transcripts 
or  extracts,  so  filed,  shall  constitute  judgments,  which  shall  be 
liens  against  the  real  estate  of  such  fiduciary  from  the  time  of 
such  entry  until  payment,  distribution  or  satisfaction.  Execu- 
tions may  be  issued  thereon  out  of  said  court  of  common  pleas 
against  the  real  estate  only  of  such  fiduciary,  by  any  person  or 
persons  interested,  for  the  recovery  of  so  much  as  may  be  due 
to  them  respectively.  The  liens  of  such  judgments  shall  cease 
at  the  expiration  of  five  years  from  the  time  of  the  entry  afore- 
said, unless  revived  by  scire  facias  in  the  manner  by  law  directed 
in  the  cases  of  judgments  in  the  courts  of  common  law. 

In  case  of  an  appeal  from  the  orphans'  court,  the  judgment 
shall  be  for  no  more  than  the  amount  finally  decreed  by  the 
appellate  court  to  be  due,  and  it  shall  be  the  duty  of  the  prothono- 
tary  of  the  common  pleas,  on  such  decree  of  the  appellate  court 
being  certified  to  him,  to  enter  on  his  docket  the  amount  so  found 
due  and  decreed  by  the  appellate  court.  If  such  amount  be 
greater  than  that  decreed  by  the  orphans'  court,  the  judgment  for 
such  excess  shall  take  effect  only  from  the  time  of  entering  the 
decree  of  the  appellate  court;  but  if  the  amount  be  reduced  by 
the  final  decree  of  the  appellate  court,  the  prothonotary  shall  reduce 
the  amount  originally  entered  on  his  judgment  docket  and  index 
accordingly;  and  such  final  decree,  upon  appeal,  being  certified 
and  filed  in  said  court  of  common  pleas,  the  said  term  of  five 
years  shall  be  counted  from  the  time  of  such  entry. 

NOTE. — This  is  Section  29  of  the  Act  of  March  29,  1832,  i  Purd.  1128 
(Section  30  of  the  Commissioners'  Draft),  as  amended  by  Section  i  of 
the  Act  of  April  27,  1909,  P.  L.  202,  5  Purd.  5894. 


432  FIDUCIARIES  ACT-SECTioN  51  (<0 

The  section  is  now  changed  by  omitting  "of  the  respective  counties" 
after  "common  pleas"  in  line  2,  by  substituting  "the"  for  "any"  before 
"orphans'  court"  in  line  7,  and  by  inserting  "of  the  same  or  any  other 
county"  after  "orphans'  court,"  the  purpose  of  these  changes  being  to 
permit  the  filing  of  transcripts  in  other  counties,  thus  supplying,  so  far 
as  it  relates  to  the  orphans'  court,  the  Act  of  June  5,  1885,  P.  L..  78,  2 
Purd.  1426. 

The  section  is  further  altered  by  substituting  "fiduciary"  for  "executor, 
administrator,  guardian,  or  other  accountant,"  by  inserting  the  words  "or 
by  virtue  of  a  decree  of  said  court,"  "which  shall  be  liens"  and  "the  real 
estate  of,"  by  striking  out  the  provisions  as  to  execution,  attachment,  and 
actions  of  debt  and  scire  facias,  and  inserting  "and  executions  may  be 
issued  thereon  out  of  said  court  of  common  pleas  against  the  real  estate 
only  of  such  fiduciary."  The  Commissioners  have  considered  it  proper 
to  recommend  these  changes  so  that  the  remedy  against  real  estate  shall 
be  exclusively  in  the  common  pleas  and  executions  against  personalty  shall 
issue  from  the  orphans'  court  only.  Corresponding  changes  are  recom- 
mended in  the  Orphans'  Court  Act,  and  a  similar  section  has  been  there 
drafted  to  permit  the  filing  in  the  common  pleas  of  transcripts  of  orders 
of  the  orphans'  court  for  the  payment  of  money  by  others  than  fiduciaries 
(see  148  supra.) 

Section  29  of  the  Act  of  1832  was  derived,  as  to  the  first  part,  from 
Section  2  of  the  Act  of  April  i,  1823,  P.  L.  286.  The  provisos  were  new 
in  the  Act  of  1832. 

The  Act  of  1909  amended  Section  29  of  the  Act  of  1832  so  as  to  provide 
that  the  transcripts  should  constitute  "judgments"  instead  of  "liens,"  and 
so  as  to  provide  for  execution  and  attachment  execution  thereon.  The 
Commissioners  recommend  the  repeal  of  the  Act  of  1909,  except  as  to  the 
validating  provisions,  etc.,  added  by  the  Act  of  1909,  as  follows: 

"And  all  executions,  attachment  execution,  and  other  process  heretofore 
issued  out  of  any  of  the  courts  of  common  pleas  of  this  commonwealth, 
upon  any  such  certified  transcripts  or  extracts  from  any  of  the  orphans' 
courts  of  this  commonwealth,  if  otherwise  valid,  and  if  otherwise  duly 
issued  and  served  as  provided  by  law,  are  hereby  declared  to  be,  and 
shall  be  deemed  and  held  to  be  lawful  and  valid,  and  no  defendant, 
garnishee,  or  other  person  shall  be  permitted  to  make  or  take  any  objection, 
exception,  plea,  or  defense  to  the  same;  nor  shall  any  objection,  exception, 
plea,  or  defense  heretofore  made  to  the  same  be  deemed  lawful,  valid,  or 
effectual,  because  or  on  the  ground  that  there  was  at  the  time  of  issuing 
any  such  process,  as  aforesaid,  no  sufficient  or  valid  judgment  upon  which 
such  process  might  be  issued;  and  the  provisions  hereof  shall  be  held 
applicable  to  all  actions,  suits,  and  proceedings  heretofore  commenced  or 
instituted,  as  well  as  to  all  such  actions,  suits,  and  proceedings  as  shall  be 
hereafter  commenced  or  instituted;  Provided,  however,  That  nothing 
herein  contained  shall  apply  to  or  affect  any  actions,  suits,  or  proceed- 
ings heretofore  commenced  or  instituted,  and  upon  which  final  judg- 
ment or  decree  of  the  supreme  or  superior  court  has  been  entered,  or 
as  to  which  any  court  of  common  pleas  has  entered  its  judgment  or 
decree,  and  the  time  for  an  appeal  therefronrj  has  elapsed." 


FIDUCIARIES  ACT— SECTIONS  51  (&)-52  (a)  433 

562.  SATISFACTION    AND    DISCHARGE    OF    JUDG- 

MENTS ON  TRANSCRIPTS. 

(&)  When  the  fiduciary  shall  have  fully  paid  and  discharged 
the  amount  of  such  judgment,  the  parties  who  have  received 
payment  shall  acknowledge  satisfaction  thereof,  on  the  record 
of  the  court  of  common  pleas.  In  case  of  neglect  or  refusal  so 
to  do,  for  the  space  of  thirty  days  after  request  in  writing  and 
tender  of  all  the  costs,  the  orphans'  court,  on  due  proof  to  them 
made  that  the  entire  amount  due  from  such  fiduciary,  according 
to  the  final  settlement  of  the  said  account,  has  been  fully  paid 
and  discharged,  may  make  an  order  for  his  relief  from  such 
recorded  judgment,  which  order,  being  certified  to  the  court  of 
common  pleas,  shall  be  entered  on  their  records,  and  shall  operate 
as  a  full  satisfaction  and  discharge  of  such  judgment. 

NOTE. — This  is  Section  30  of  the  Act  of  March  29,  1832,  i  Purd.  1128 
(Section  31  of  the  Commissioners'  Draft),  as  amended  by  Section  2  of 
the  Act  of  April  27,  1909,  P.  L.  202,  5  Purd.  5894. 

Section  30  was  new  in  the  Act  of  1832.  The  change  made  by  the 
amendment  of  1909  was  merely  to  substitute  "judgment"  for  "lien."  The 
term  "fiduciary"  is  now  substituted  for  the  words  "executor,  administrator, 
guardian,  or  other  accountant,"  and  "operate"  for  "inure  and  be  received." 
The  words  "to  the  extent  of  what  they  have  received"  are  omitted  after 
"thereof"  in  line  4.  The  provision  for  a  penalty  of  fifty  dollars  and 
damages  for  neglect  or  refusal  to  satisfy  has  been  omitted,  the  remedy  in 
the  orphans'  court  being  considered  sufficient. 

563.  DISCHARGE  OF  FIDUCIARIES  AND  SURETIES, 
—CONDITIONS  OF  DISCHARGE. 

SECTION  52.  (a)  Any  fiduciary  whose  accounts  shall  have  been 
settled  and  confirmed  and  who  shall  have  paid  and  transferred 
the  remainder  of  the  property  in  his  hands  to  his  successor  in  the 
administration  or  trust,  if  any,  or  to  the  persons  legally  entitled 
thereto,  may,  on  petition,  be  discharged  by  the  orphans'  court 
having  jurisdiction  of  his  accounts  from  the  duties  of  his  ap- 
pointment; and  his  sureties  may  be  discharged  from  future 
liability  with  respect  thereto:  Provided,  That  in  every  case  of 
the  petition  of  a  guardian  for  his  discharge  during  the  minority 
of  his  ward,  it  shall  be  the  duty  of  the  court  to  appoint  some 
suitable  person  to  appear  and  act  for  the  ward  in  respect  thereto. 

NOTE. — This  is  a  combination  of  Section  21  of  the  Act  of  March  29, 
1832,  I  Purd.  1138,  and  Section  II  of  the  same  act,  I  Purd.  1087,  relating 
to  discharge  of  guardians.  The  phraseology  is  altered  and  the  section 

28 


434  FIDUCIARIES  ACT— SECTIONS  52  (a),  (&)-53  GO 

is  extended  to  testamentary  trustees.     The  provision  as  to  discharge  of 
sureties  has  been  added. 

Section  21  of  the  Act  of  1832  was  derived  from  the  first  paragraph  of 
Section  3  of  the  Act  of  April  4,  1797,  3  Sm.  L.  296.  Section  n  was 
founded  on  Section  4  of  the  Act  of  March  30,  1821,  P.  L.  153- 

See  forms  86-90. 

564.  DISCHARGE  OF  ONE  OR  MORE  JOINT  FIDU- 

CIARIES. 

(&)  Whenever  one  or  more  of  several  joint  fiduciaries  shall 
die  or  be  discharged  or  removed  by  the  proper  orphans'  court, 
the  said  court,  upon  the  application  of  any  party  interested,  shall 
have  power  to  discharge  from  future  liability  said  discharged  or 
deceased  fiduciary  and  his  surety  or  sureties,  and  require  new  or 
additional  security  of  the  remaining  fiduciary  or  fiduciaries,  with 
a  like  result  in  case  of  failure  to  comply  as  is  provided  by  this 
act  when  new  or  additional  security  is,  for  any  cause,  required 
by  such  court :  Provided,  That  such  discharge  shall  not  affect 
liabilities  existing  at  the  time  of  the  discharge  of  such  fiduciary 
or  fiduciaries,  surety  or  sureties. 

NOTE.— This  is  Section  I  of  the  Act  of  February  2,  1853,  P.  L.  31,  I 
Purd.  1138,  changed  by  extending  it  to  all  fiduciaries  instead  of  admin- 
istrators only.  Various  alterations  have  been  made  in  the  phraseology, 
especially  by  substituting  "security"  for  "surety." 

565.  REMOVAL  OF  FIDUCIARIES,— GROUNDS  FOR 

REMOVAL. 

SECTION  53.  (a)  Any  orphans'  court  having  jurisdiction  of  the 
accounts  of  executors,  administrators,  guardians  or  trustees  shall 
have  exclusive  power  to  remove  such  executor  or  administrator 
and  vacate  the  letters  testamentary  or  of  administration  or  to 
remove  such  guardian  or  trustee,  as  the  circumstances  of  the 
case  may  require,  in  any  of  the  following  cases : 

NOTE. — In  this  section,  there  have  been  collected  all  the  various  causes 
for  removal  by  the  court  of  executors,  administrators,  guardians  and 
trustees. 

In  line  3,  the  word  "exclusive"  has  been  inserted,  in  order  to  take  away 
the  seldom-exercised  concurrent  jurisdiction  of  the  court  of  common  pleas 
to  remove  testamentary  trustees.  This  involves  the  repeal  of  Section  12 
of  the  Act  of  March  11,  1836,  P.  L.  79,  4  Purd.  4887,  and  of  Sections  16 
to  21  inclusive  of  the  Act  of  June  14,  1836,  P.  L.  633,  4  Purd.  4887-8,  the 
latter,  however,  only  so  far  as  they  relate  to  testamentary  trustees.  The 


FIDUCIARIES  ACT— SECTION   53  (a)    i  435 

proviso  (see  Sec.  574  infra),  is  added  to  save  the  jurisdiction  of  the  court 
of  common  pleas  in  pending  cases. 

See  Miller's  Est,  264  Pa.  310,  107  Atl.  684;  Buch's  Est.,  35  Lane.  41; 
Kelly's  Est,  28  Dist.  87. 

That  an  executor  is  ignorant,  irresponsible  and  intemperate,  is  not  a 
reason  for  his  removal  where  the  testator  was  well  acquainted  with  his 
habits.  One  may  be  uneducated,  financially  irresponsible  and  a  tippler  and 
yet  be  competent  to  administer  an  estate.  Buch's  Est.,  35  Lane.  41. 

566.  WASTE  OR  MISMANAGEMENT;  PROBABLE 
INSOLVENCY;  FAILURE  TO  FILE  INVEN- 
TORY OR  ACCOUNT. 

i.  When  such  fiduciary  is  wasting  or  mismanaging  the  estate 
or  property  under  his  charge,  or  is  like  to  prove  insolvent,  or  has 
neglected  or  refused  to  exhibit  true  and  perfect  inventories,  or 
render  full  and  just  accounts  of  such  estate  or  property,  come 
to  his  hands  or  knowledge; 

Paragraph  i  is  derived  from  Section  22  of  the  Act  of  March  29,  1832, 
i  Purd.  1139,  with  the  substitution  of  the  word  "mismanaging"  for  "mis- 
placing;" Section  i  of  the  Act  of  April  22,  1846,  P.  L.  483,  i  Purd.  1142; 
Section  i  of  the  Act  of  April  7,  1859,  P.  L.  406,  i  Purd.  1143,  which 
extended  the  Act  of  832  to  cases  of  trustees;  and  Section  i  of  the  Act 
of  May  i,  1861,  P.  L.  680,  i  Purd.  1141. 

It  cannot  be  said  that  the  court  abuses  its  discretion  in  removing  an 
executor  for  mismanagement  of  the  estate  where  he  admits  that  he  had 
failed  to  pay  the  debts  of  the  decedent  and  the  taxes  levied  against  the 
estate,  and  that  he  had  misappropriated  a  portion  of  the  rentals,  made 
assets  for  payment  of  debts,  and  fails  to  make  any  satisfactory  explanation 
of  his  actions. 

"It  is  provided  by  the  53d  section,  clause  A,  (i)  of  the  Fiduciaries  Act, 
that  the  orphans'  court  having  jurisdiction  of  the  accounts  of  executors 
shall  have  power  to  remove  such  executor,  'when  such  fiduciary  is  wasting 
or  mismanaging  the  estate  in  his  charge.'  or  'where  for  any  reason  the 
interests  of  the  estate  or  property  are  likely  to  be  jeopardized  by  the 
continuance  of  said  fiduciary. 

"The  executor  who  pays  out  the  moneys  of  an  estate  for  purposes  not 
authorized  by  law  is  wasting  and  mismanaging  the  estate  as  much  as  one 
who  converts  the  money  of  the  estate  to  his  own  use.  It  is  the  bounden 
duty  of  the  court  to  hold  a  fiduciary  to  a  strict  account  of  his  man- 
agement." 

From  opinion  of  lower  court  affirmed  in  Miller's  Est.,  264  Pa.  310,  107 
Atl.  684.  See  also  Buch's  Est.,  35  Lane.  41 ;  Kelly's  Est.,  28  Dist.  87. 


436  FIDUCIARIES  ACT— SECTION  53  (a)  i,  2,  3,  4,  5,  .6 

567.  LUNACY,  DRUNKENNESS,  OR  WEAK-MINDED- 

NESS. 

2.  When   such   fiduciary   has   been   duly   declared   a   lunatic, 
habitual  drunkard  or  weak-minded  person; 

Paragraph  2  is  derived  from  Section  26  of  the  Act  of  1832,  i  Purd. 
1140,  with  the  addition  of  the  words  "or  weak-minded  person." 

568.  SICKNESS    OR    PHYSICAL    OR    MENTAL    IN- 

CAPACITY. 

3.  When  such  fiduciary  has  become  incompetent  to  discharge 
the  duties  of  his  trust,  by  reason  of   sickness  or  physical   or 
mental  incapacity,  and  it  shall  appear  to  the  satisfaction  of  the 
court  that  such  incompetency  is  likely  to  continue,  to  the  injury 
of  the  estate  under  his  control ; 

Paragraph  3  is  derived  from  Section  2  of  the  Act  of  May  i,  1861, 
P.  L.  680,  i  Purd.  1142,  with  some  changes  in  phraseology,  the  omission 
of  the  word  "sole,"  and  the  substitution  of  "other  cause"  for  "other 
visitation." 

See  Buch's  Est,  35  Lane.  41. 

569.  REMOVAL  FROM  THE  STATE. 

4.  When  such  fiduciary  has  removed  from  this  state,  or  has 
ceased  to  have  any  known  place  of  residence  therein,  during  the 
period  of  one  year  or  more ; 

Paragraph  4  is  derived  from  Section  27  of  the  Act  of  1832,  i  Purd.  1140. 

Kelly's   Est.,   28   Dist.   87. 

570.  MISMANAGEMENT       OR       MISCONDUCT       BY 

GUARDIAN. 

5.  When  any  guardian,  whether  testamentary   or  otherwise, 
mismanages  the  minor's  estate  or  misconducts  himself  in  respect 
to  the  maintenance,  education  or  moral  interests  of  the  minor; 

Paragraph  5  is  derived  from  Section  12  of  the  Act  of  1832,  i  Purd.  1087. 
See  Cook's  Est.,  48  Pa.  C.  C.  599;    (S.  C.  sub  nom.     Kerr's  Petition) 
29   Dist.   909. 

571.  FAILURE  TO  PAY  OVER  PRINCIPAL  OR  IN- 

COME OR  TO  COMPLY  WITH  ANY  ORDER 
OF  COURT. 

6.  When  such  fiduciary  fails  or  neglects  to  pay  over  the  prin- 
cipal or  income  of  the  estate,  according  to  his  duty  under  the 


FIDUCIARIES  ACT— SECTION  S3  (o)  6,  7,  8,  9  437 

trust,  or  fails  or  neglects  to  comply  with  any  order  or  direction 
of  the  court  made  in  relation  to  said  trust ; 

Paragraph  6  is  derived  from  Section  i  of  the  Act  of  April  7,  1859, 
P.  L.  406,  I  Purd.  1143. 

See  Kelly's  Est.,  28  Dist.  87. 

572.  NEGLECT  OR  ABUSE  OF  TRUST  BY  TRUSTEE 
FOR  RELIGIOUS,  EDUCATIONAL  OR 
CHARITABLE  PURPOSES. 

7.  When  any  trustee  of  property  held  in  trust  under  the  pro- 
visions of  any  last  will  and  testament  for  religious,  educational 
or  charitable  purposes,  or  for  use  as  a  burying-ground,  neglects 
or  abuses  such  trust; 

Paragraph  7  is  derived  from  Section  i  of  the  Act  of  February  17,  1818, 
P.  L.  104,  4  Purd. 


573.  PROBABLE  JEOPARDY  OF  INTERESTS  OF  ES- 

TATE. 

8.  When,  for  any  reason,  the  interests  of  the  estate  or  prop- 
erty are  likely  to  be  jeopardized  by  the  continuance  of  any  such 
fiduciary. 

Paragraph  8  is  derived  from  Section  I  of  the  Act  of  May  I,  1861,  P.  L. 
680,  i  Purd.  1141. 

See  Miller's  Est,  264  Pa.  310,  107  Atl.  684;    Kelly's  Est.,  28  Dist.  87. 

574.  WHEN  ALL  OR  A  MAJORITY  OF  THE  CESTUIS 

QUE  TRUST,  HAVING  LIFE  ESTATES,  DE- 
SIRE REMOVAL  ON  ANY  SUBSTANTIAL 
GROUND. 

9.  When  all  the  cestuis  que  trust,   or  a  majority  of   them, 
having  the  life  estate  under  any  trust,  shall  desire  the  removal 
of  the  trustee  or  trustees  upon  any  substantial  ground  not  here- 
inbefore enumerated,  and  the  court,  upon  petition  filed  by  them 
or  any  of  them,  shall  be  satisfied  that  such  substantial  ground  for 
removal  exists,  in  which  case,  the  court  may  remove  said  trustee 
or  trustees  and  appoint  another  or  others  as  chosen  by  said 
parties. 

Provided,   however,   That  nothing  herein  contained   shall   be 
construed  to  affect  the  jurisdiction  of   any  court   of   common 


438  FIDUCIARIES  ACT— SECTION  53  (a)  9,  (fr),  (c) 

pleas  in  proceedings  pending  at  the  date  of  the  approval  of  this 
act. 

Paragraph  9  is  derived  from  Section  i  of  the  Act  of  April  9,  1868, 
P.  L.  785,  4  Purd.  4893,  which  applies  only  to  Philadelphia,  modified  so  as 
to  conform  to  the  decision  in  Neafie's  Estate,  199  Pa.  307. 

This  combination  has  been  made  in  order  to  avoid  unnecessary  repeti- 
tions. The  following  clauses  deal  with  the  procedure  common  to  all  the 
cases  above  enumerated,  and  the  next  section  covers  the  cases  in  which 
the  court  has  power  to  require  additional  security. 

575.  PETITION,     CITATIONS,     ORDERS     AND     DE- 

CREES. 

(b)  Whenever  it  shall  be  made  to  appear  to  the  orphans' 
court  having  jurisdiction  of  the  accounts  of  any  fiduciary,  on  the 
oath  or  affirmation  of  any  person  interested,  that  there  exists  any 
one  or  more  of  the  grounds  for  removal  of  such  fiduciary  enumer- 
ated in  the  last  preceding  clause  of  this  section,  such  court  may 
issue  a  citation  to  such  fiduciary,  requiring  him  to  appear  on  a 
day  certain,  to  answer  the  charge  so  preferred,  and  may  make 
all  such  necessary  rules  and  orders  as  the  said  court  may  deem 
proper  for  bringing  the  matter  complained  of  to  a  hearing.     If, 
on  such  hearing,  the  said  court  shall  be  satisfied  of  the  truth  of 
the  matters  charged,  it  may  remove  such  executor  or  adminis- 
trator and  vacate  the  letters  testamentary  or  of  administration 
or  remove  such  guardian  or  trustee,  as  aforesaid,  and  direct  the 
issuance  of  new  letters  testamentary  or  of  administration,  or 
appoint  a  new  guardian  or  trustee,  and  make  such  orders  for  the 
security  of  the  trust  property  and  for  the  delivery  of  such  prop- 
erty and  the  books,  accounts,  papers  and  moneys  belonging  or 
relating  to  the  trust  to  the  successor  of  such  fiduciary  as  the 
circumstances  of  the  case  may  require. 

NOTE. — This  is  derived  from  Section  i  of  the  Act  of  May  i,  1861, 
P.  L.  680,  i  Purd.  1141;  Section  26  of  the  Act  of  1832,  i  Purd.  1140; 
Section  12  of  the  Act  of  1832,  i  Purd.  1087;  and  Section  i  of  the  Act  of 
April  7,  1859,  P-  L.  406,  i  Purd.  1143. 

576.  SUMMARY    REMOVAL    IN    CASES    OF    EMER- 

GENCY. 

(c)  Any  orphans'  court  having  jurisdiction  of  the  accounts  of 
any  fiduciary  shall  have  power  in  a  case  of  emergency,  when  the 
exigencies  of  the  case  shall  appear  to  the  satisfaction  of  the  court 
to  require  it,  in  order  that  the  rights  of  creditors  and  parties 


FIDUCIARIES  ACT— SECTION  53  (c),   (<f),   (*)  439 

interested  in  the  assets  of  the  estate  shall  be  protected,  summarily 
to  remove  such  executor  or  administrator  and  vacate  the  letters 
testamentary  or  of  administration  or  summarily  to  remove  such 
guardian  or  trustee,  on  any  of  the  grounds  enumerated  in  clause 
(a)  of  this  section,  and  to  direct  the  issuance  of  new  letters  or  to 
appoint  a  successor  to  such  guardian  or  trustee,  on  the  ex  parte 
petition  of  any  creditor  or  party  interested  in  the  estate,  and 
further  to  make  such  orders  for  the  security  of  the  trust  prop- 
erty and  for  the  delivery  of  such  property  and  the  books,  accounts, 
papers  and  moneys  belonging  or  relating  to  the  trust  to  the 
successor  of  such  fiduciary  as  the  circumstances  of  the  case  may 
require :  Provided,  That  it  shall  be  lawful  for  any  such  fiduciary, 
so  removed,  to  apply  by  petition  to  said  court  to  have  such  decree 
of  removal  vacated  and  to  be  reinstated  in  his  office. 

NOTE. — This  clause  is  new  and  intended  to  supply  an  hiatus  in  the 
present  law,  which  apparently  does  not  fully  provide  for  immediate 
relief  where  the  fiduciary,  for  example,  absconds  and  cannot  be  reached 
by  citation  or  attachment. 

577.  DECREE  REMOVING  ONE  FIDUCIARY  NOT  TO 

AFFECT  CO-FIDUCIARIES. 

(d)  No  decree  removing  one  of  several  co-fiduciaries  shall 
suspend  the  power  or  prejudice  the  acts  of  any  of  the  other 
fiduciaries. 

NOTE. — This  is  derived  from  the  proviso  to  Section  27  of  the  Act  of 
1832,  i  Purd.  1140. 

578.  ENFORCEMENT  OF  ORDERS  AND   DECREES; 

SUITS  BY  SUCCEEDING  FIDUCIARY. 

(0)  If  such  superseded  fiduciary  shall  neglect  or  refuse  to 
comply  with  any  order  or  decree  of  the  court  made  under  the 
provisions  of  this  section,  the  court  shall  have  power  to  enforce 
obedience  thereto  by  attachment,  with  or  without  sequestration, 
execution  or  otherwise,  as  to  such  court  shall  seem  necessary 
and  proper  for  the  due  protection  of  the  rights  and  interests  of 
any  and  all  parties  interested;  or  the  succeeding  fiduciary  may 
proceed  at  law  against  the  superseded  fiduciary  and  his  sureties, 
if  any  there  be,  or  against  any  other  person  who  may  be  possessed 
of  any  goods  or  chattels  belonging  to  the  estate  of  the  decedent 
or  minor,  as  the  case  may  be,  or  be  indebted  to  him;  or  the 


440  FIDUCIARIES  ACT— SECTIONS  53  (*)-54  (a)  i 

remedies  by  execution  and  suit  at  law  may  be  pursued  at  the 
same  time,  if  the  case  so  require,  until  the  end  be  fully  attained. 

NOTE. — This  is  a  combination  of  Section  24  of  the  Act  of  1832,  I  Purd. 
1139,  and  the  last  part  of  Section  i  of  the  Act  of  April  7,  1859,  P.  L.  406, 
I  Purd.  1143. 

579.  REQUIREMENT  OF  SECURITY  BY  EXECUTOR 
OR  ADDITIONAL  SECURITY  BY  OTHER  FIDU- 
CIARY; PROCEEDINGS  BY  SURETIES  TO  RE- 
QUIRE COUNTER  SECURITY,  FOR  DISCHARGE 
OF  SURETY  OR  FOR  REMOVAL  OF  FIDU- 
CIARY,—PROCEEDINGS  TO  REQUIRE  ADDI- 
TIONAL SECURITY,— DECREE;  ATTACHMENT. 

SECTION  54.  (a)  i.  In  any  of  the  cases  enumerated  in  Section 
53,  clause  (a)  of  this  act,  the  court  may,  upon  the  return  of  the 
citation,  require  such  security  of  an  executor,  or  such  other  and 
further  security  of  an  administrator,  guardian  or  trustee,  as  they 
may  think  reasonable,  conditioned  for  the  performance  of  the 
trust,  which  security  shall  be  taken  in  the  name  of  the  common- 
wealth of  Pennsylvania  and  filed  in  the  said  court,  and  shall  be 
deemed  and  considered  in  trust  for  the  benefit  of  all  persons  in- 
terested in  such  estate:  Provided,  That  if  it  shall  be  made  to 
appear  to  the  said  court  that  such  fiduciary  is  about  to  remove 
from  this  commonwealth,  or  that  the  property  under  his  charge 
may  be  wasted  or  materially  injured  before  he  can  be  reached 
by  the  ordinary  process  of  the  court,  it  shall  be  lawful  for  such 
court  to  issue  a  writ  of  attachment,  under  which  the  same  pro- 
ceedings may  take  place  as  in  other  cases  of  attachment  on 
mesne  process  in  the  orphans'  court ;  and  on  the  return  of  such 
attachment,  the  court  may  proceed  as  on  the  return  to  the  citation. 

NOTE. — This  is  derived  from  Section  22  of  the  Act  of  March  29,  1832, 
i  Purd.  1139.  It  is  extended  to  all  cases  covered  by  clause  (a)  of  Section 
53  of  the  present  draft,  instead  of  merely  the  cases  covered  by  paragraph  I 
of  that  clause. 

Section  25  of  that  act,  I  Purd.  1140,  which  was  derived  from  the  Act 
of  March  27,  1713,  i  Sm.  L.  81,  provides  that  security  may  be  required 
where  "an  executrix,  having  minors  of  her  own,  or  being  concerned  for 
others,  is  married  or  like  to  be  espoused  to  another  husband,  without  secur- 
ing the  minors'  portions  or  real  estates."  Section  i  of  the  Act  of  April  25, 
1850,  P.  L.  569,  i  Purd.  1141,  amended  the  above  section  so  as  to  "include 
all  cases  therein  specified,  whether  there  are  minors  concerned  in  the 
estate  or  not,  and  whether  the  executrix  is  sole  executrix  or  otherwise." 


FIDUCIARIES  ACT— SECTION  54  (a)    i,  2,    (&)  441 

This  amendment  leaves  the  section  applicable  to  any  case  where  an 
executrix  "is  married  or  like  to  be  espoused  to  another  husband."  Since 
the  married  women's  acts,  there  seems  to  be  no  occasion  for  this  provision. 
The  original  section  was  apparently  intended  to  cover  the  case  where  a 
widow,  named  as  executrix,  remarried  or  was  about  to  remarry,  and  to 
protect  the  interests  of  minor  children  of  the  testator  against  the  property 
rights  which  would  be  acquired  by  the  second  husband.  The  repeal  of 
Section  25  of  the  Act  of  1832  and  the  amendment  of  1850  is  therefore 
recommended. 

See  Buch's  Est.,  35  Lane.  41. 

580.  REMOVAL    ON    FAILURE   TO    COMPLY   WITH 

DECREE. 

2.  If  such  fiduciary  shall  neglect  or  refuse  to  give  such  secu- 
rity, or  such  further  security,  so  ordered,  then  the  said  court  may 
remove  such  executor  or  administrator  and  vacate  such  letters 
testamentary  or  of  administration,  or  remove  such  guardian  or 
trustee,  and  direct  the  issuance  of  new  letters  or  appoint  a  new 
guardian  or  trustee  as  aforesaid. 

NOTE. — This  is  derived  from  Section  23  of  the  Act  of  1832,  I  Purd. 
1139.  "May  remove"  is  substituted  for  "shall  remove." 

581.  PROCEEDING  BY  SURETY  TO  COMPEL  GIVING 

OF  COUNTER  SECURITY. 

(fr)  Application  may  be  made  to  the  orphans'  court,  in  any  of 
the  cases  mentioned  in  clause  (a)  of  Section  53  of  this  act,  by 
any  surety  on  the  bond  of  such  fiduciary,  and  upon  the  petition 
of  such  surety  duly  verified  by  oath  or  affirmation,  the  like  pro- 
ceedings may  be  had,  for  the  purpose  of  compelling  such  fidu- 
ciary to  give  security,  and  thereupon  the  court  may  order  such 
fiduciary  to  give  such  counter-securities  as  they  shall  judge 
necessary  to  indemnify  the  surety  against  loss  by  reason  of  his 
suretyship.  If  such  fiduciary  shall  refuse  or  fail  to  give  such 
security,  within  such  reasonable  time  as  the  court  shall  order,  it 
shall  be  lawful  for  the  court  to  direct  such  fiduciary  to  pay  or 
deliver  over  forthwith  to  such  surety,  or  to  some  other  person 
for  him,  all  of  the  property,  moneys,  books,  accounts  and  papers 
whatsoever  for  which  such  surety  may  be  accountable  or  which 
may  belong  or  relate  to  the  trust:  Provided,  That  such  surety 
shall  first  give  to  the  satisfaction  of  the  court,  sufficient  security, 


442  FIDUCIARIES  ACT— SECTION  54  (6),  (c) 

faithfully  to  preserve  and  account  therefor,  and  deliver  and  dis- 
pose of  the  same  according  to  the  order  of  the  court. 

NOTE.— This  is  Section  28  of  the  Act  of  1832,  I  Purd.  1140,  with  some 
changes  in  phraseology,  the  substitution  of  "fiduciary"  for  "executor, 
administrator  or  guardian,"  and  the  extension  of  the  provisions  to  all 
cases  covered  by  clause  (a)  of  Section  53  (see  565  supra),  instead  of 
merely  the  cases  covered  by  paragraph  i  of  that  clause. 

582.     PROCEEDING  BY  SURETY  FOR  DISCHARGE. 

(c)  It  shall  be  lawful  for  the  orphans'  court  having  jurisdiction 
of  the  accounts  of  any  fiduciary,  on  the  petition  of  any  surety 
of  such  fiduciary,  or  of  the  personal  representatives  of  a  deceased 
surety,  to  issue  a  citation  requiring  such  fiduciary,  at  the  return 
thereof,  not  less  than  thirty  days'  notice  to  be  given  of  the 
presentation  of  such  petition,  to  file  an  account  of  his  manage- 
ment of  the  trust  or  estate.  The  said  citation,  upon  such  peti- 
tion, and  affidavit  filed  of  the  facts  connected  with  the  execution 
and  position  of  the  trust  funds  or  estate,  shall  further  direct  the 
said  fiduciary  to  show  cause  why  the  petitioner  or  his  estate 
should  not  be  discharged  from  all  future  liability,  if  the  court, 
after  due  notice  to  all  parties  interested,  deem  it  reasonable  and 
proper.  If  the  court,  on  due  consideration,  shall  discharge  such 
surety  or  his  estate,  the  fiduciary  shall  thereupon  give  a  new  bond, 
with  surety  or  sureties,  as  the  court  shall  order,  and  on  failure 
or  refusal  so  to  do,  within  such  time  as  is  ordered  by  the  court, 
shall  be  removed  from  the  trust,  and  some  other  person  or  cor- 
poration appointed.  When  a  new  bond  is  required  under  the 
provisions  of  this  clause  the  surety  in  the  prior  bond  or  his  estate 
shall  be  liable  for  all  breaches  of  the  conditions  thereof  com- 
mitted before  the  new  bond  is  approved  according  to  law. 

NOTE. — This  embodies  the  provisions  of  Sections  I,  2  and  3  of  the  Act 
of  June  I,  1907,  P.  L.  384,  7  Purd.  7701-2.  Section  4  of  that  act  is  a 
general  repealer. 

The  word  "fiduciary"  has  been  substituted  for  "trustee,  committee, 
guardian,  assignee,  receiver,  executor,  administrator,  or  other  fiduciary;" 
the  provisions  as  to  representatives  of  a  deceased  surety  have  been  in- 
serted ;  the  reference  to  the  court  of  common  pleas  has  been  omitted ; 
the  jurisdiction  is  given  to  the  orphans'  court  having  jurisdiction  of  the 
accounts,  instead  of  the  court  of  the  county  of  the  residence  of  the 
fiduciary;  "during  any  regular  term  of  the  court"  has  been  omitted  after 
"return  thereof,"  and  the  phraseology  has  been  modified. 

The  Act  of  1907  seems  to  repeal  by  implication  the  Act  of  May  10, 
1881,  P.  I,.  14,  4  Purd.  4914,  which  applied  only  to  trusts  created  "to 


FIDUCIARIES  ACT— SECTIONS  54  (c)-55  443 

continue  for,  or  during,  a  life  or  lives,  or  marriage,"  and  provided  that, 
the  petition  shall  not  be  presented  until  more  than  three  years  after  the 
appointment  of  the  trustee. 

The  Act  of  1881  amended  Section  i  of  the  Act  of  March  27,  1865, 
P.  L.  44,  and  reenacted  Sections  2  and  3  of  that  act. 

Section  I  of  the  Act  of  April  17,  1866,  P.  L.  in,  4  Purd.  4915,  provided 
that  the  petition  authorized  by  the  Act  of  1865  might,  "in  the  event  of  the 
death  of  such  sureties,  or  any  one  of  them,  be  presented  by  the  personal 
representative  of  such  surety  or  sureties,  with  like  effect  in  all  respects, 
as  if  the  petition  had  been  presented  by  the  deceased  surety  or  sureties 
in  his  or  her  lifetime."  This  provision  was  omitted  from  the  Acts  of 
1881  and  1907,  but  its  equivalent  is  now  included. 

583.  REQUIREMENT  OF  STATEMENT  OF  INVEST- 
MENTS ON  TEN  DAYS'  NOTICE;  ACCOUNT- 
ING REMOVAL. 

SECTION  55.  In  case  any  surety  or  sureties,  or  the  personal 
representatives  of  any  deceased  surety  or  sureties  upon  the  bond 
of  any  fiduciary,  or  any  person  interested  in  the  trust,  shall  apply 
to  the  fiduciary  for  a  complete  and  detailed  statement  of  the 
nature  and  character  of  the  securities  in  which  the  trust  funds 
are  invested,  and  the  said  fiduciary  shall  fail  for  the  space  of  ten 
days  to  furnish  such  statement,  or  if,  such  statement  having  been 
furnished,  it  shall  appear  to  the  said  surety  or  sureties,  or  the 
representatives  of  said  surety  or  sureties,  or  other  person  inter- 
ested in  said  trust,  that  the  funds  in  the  hands  of  the  said  fiduciary 
are  badly  invested  so  as  to  be  likely  to  result  in  a  loss  to  the  trust, 
the  said  surety  or  sureties,  or  the  representatives  of  said  surety  or 
sureties,  or  other  person  interested  in  the  trust,  may  present  a 
petition  to  the  orphans'  court  having  jurisdiction  of  said  trust, 
praying  that  an  order  be  made  requiring  the  said  fiduciary  to  file 
an  account  of  the  administration  of  his  trust,  which  account  shall 
include  a  complete  and  detailed  statement  of  the  manner  and 
securities  in  which  said  trust  funds  are  invested,  within  twenty 
days  after  service  of  said  order,  unless  the  time  be  enlarged  by 
the  court.  Thereupon  the  said  court  shall  make  such  order,  and 
if,  upon  the  audit  of  such  account,  it  shall  appear  to  the  court  that 
the  said  fiduciary  has  been  guilty  of  any  act  of  fraud  or  mis- 
management or  has  invested  the  trust  funds  in  securities  not 
authorized  by  law  or  by  the  will  of  the  testator,  or  has  made 
investments  which  are  likely  to  cause  a  loss  to  the  trust,  said 
court  may  remove  the  said  fiduciary  and  order  payment  of  the 
assets  to  his  successor  or  into  court. 


444  FIDUCIARIES  ACT— SECTIONS  55-56  (a) 

NOTE.— This  is  Section  I  of  the  Act  of  June  3,  1893,  P.  L.  273,  4  Purd. 
4915,  changed  by  inserting  "personal"  and  "deceased"  in  line  2,  by  sub- 
stituting "fiduciary"  for  "trustee,  committee,  guardian,  assignee,  receiver, 
administrator,  executor  or  other  person  having  trust  funds  in  his  hands," 
by  requiring  the  filing  and  audit  of  an  account  instead  of  the  filing  of  a 
statement  in  the  first  instance,  and  by  eliminating  the  provisions  as  to 
investments  outside  of  the  state. 

The  Act  of  1893  should  be  repealed  only  so  far  as  it  relates  to  fiduciaries 
who  are  within  the  scope  of  the  present  act.  Section  2,  4  Purd.  4916, 
provides:  "This  act  shall  apply  to  all  trusts,  whether  the  same  be  within 
the  jurisdiction  of  the  orphans'  court,  of  common  pleas,  or  of  a  court  of 
equity."  Section  3  is  a  general  repealer. 

584.  APPOINTMENT  OF  TRUSTEES  TO  FILL  VA- 
CANCIES; PARTIAL  VACANCY  IN  TESTA- 
MENTARY TRUST. 

SECTION  56.  (a)  Whenever,  by  the  provisions  of  any  last  will 
and  testament  admitted  to  probate,  a  trust  has  been  or  shall  be 
declared  of  and  concerning  any  real  or  personal  estate,  to  be 
executed  by  a  trustee  or  trustees  named  in  said  will  or  by  the 
executor  or  executors  of  said  will,  whether  by  virtue  of  their 
office  or  otherwise,  and  any  of  the  said  executors  or  trustees 
shall  die,  renounce,  resign,  be  dismissed  from  or  refuse  to  act 
in  the  said  trust,  leaving  the  other  executor  or  executors,  trustee 
or  trustees,  continuing  therein,  it  shall  be  lawful  for  the  orphans' 
court  having  jurisdiction  of  the  accounts  of  such  executors  or 
trustees,  on  the  application  of  any  party  in  interest,  and  with  the 
consent  of  such  continuing  executor  or  executors,  trustee  or 
trustees,  with  notice  to  all  persons  interested,  so  far  as  such  notice 
can  reasonably  be  given,  to  appoint  a  trustee  or  trustees  in  the 
place  of  the  executor  or  executors,  trustee  or  trustees,  so  dying, 
renouncing,  resigning,  dismissed  or  refusing  to  act,  and  to  re- 
quire the  person  or  persons  so  appointed  to  enter  sufficient 
security  for  the  faithful  performance  of  the  trust.  The  trustee  or 
trustees  so  appointed  shall  have  the  same  power  and  interest  over 
and  in  the  property  in  trust,  as  the  executor  or  executors,  trustee 
or  trustees,  in  whose  stead  he  or  they  shall  be  so  appointed  as 
aforesaid.  It  shall  also  be  lawful  for  the  said  court  to  appoint  a 
successor  or  successors  to  such  trustee  or  trustees  from  time  to 
time,  whenever  from  death,  resignation  or  otherwise,  the  same 
shall  be  necessary  or  expedient. 

NOTE. — This  is  derived  from  Section  2  of  the  Act  of  April  10,  1849, 
P.  L.  597,  i  Purd.  1142  (which  was  confined  to  Philadelphia,  but  was 
extended  throughout  the  state  by  the  Act  of  April  23,  1864,  P.  L,.  550,  i 


FIDUCIARIES  ACT— SECTION  56  (o),  (6)  445 

Purd.  1143)  and  Section  I  of  the  Act  of  April  22,  1846,  P.  L.  483,  I  Purd. 
1142. 

See  forms  17,  91,  92. 

"The  auditing  judge  is  of  the  opinion  that  the  power  to  carry  out  the 
charitable  purpose  is  not  confined  alone  to  the  first  named  executor.  It  is 
true  that  in  conferring  this  power  the  testator  speaks  of  'my  executor/ 
using  the  singular  number,  but  this  the  testator  does  because  he  appoints 
one  person  sole  executor,  and  when  he  later  appoints  succeeding  executors 
in  the  event  of  the  original  executor's  death,  etc.,  his  apparent  purpose  is 
that,  in  any  event,  there  shall  be  some  one  in  the  office  of  executor  who, 
by  virtue  of  their  office,  shall  have  the  duty  of  carrying  out  this  provision 
of  the  will  as  well  as  the  duty  of  performing  the  other  services  required 
of  executors.  See,  generally,  Kershaw's  Estate,  27  Dist.  R.  659;  Murphy's 
Estate,  184  Pa.  310;  Sheets's  Estate,  215  Pa.  164;  Fiduciaries  Act  of  June 
7,  1917,  Sections  28  and  56  P.  L.  447." 

Adjudication  of  THOMPSON,  J.,  in  Barnwell's  Est,  49  Pa.  C.  C.  188, 
29  Dist.  317,  aff'd.  in  269  Pa.  443. 

585.   ENTIRE  VACANCY  IN  TESTAMENTARY  TRUST. 

(b)  Whenever,  in  any  of  the  cases  enumerated  in  clause  (a) 
of  this  section,  all  of  the  said  executors  or  trustees  shall  die, 
renounce,  resign,  be  dismissed  from  or  refuse  to  act  in  the  said 
trust,  it  shall  be  lawful  for  the  orphans'  court  having  jurisdiction 
of  the  accounts  of  such  executors  or  trustees,  on  the  application 
of  any  party  interested,  and  with  notice  to  all  persons  interested, 
so  far  as  such  notice  can  reasonably  be  given,  to  appoint  a  trustee 
or  trustees  in  place  of  the  executor  or  executors,  trustee  or 
trustees,  so  dying,  renouncing,  resigning,  dismissed  or  refusing 
to  act,  and  to  require  the  person  or  persons  so  appointed  to  enter 
sufficient  security  for  the  faithful  performance  of  the  trust.  The 
trustee  or  trustees  so  appointed  shall  have  the  same  power  and 
interest  over  and  in  the  property  in  trust,  as  the  executor  or 
executors,  trustee  or  trustees  in  whose  stead  he  or  they  shall  be 
so  appointed  as  aforesaid.  It  shall  also  be  lawful  for  the  said 
court  to  appoint  a  successor  or  successors  to  such  trustee  or 
trustees  from  time  to  time,  whenever  from  death,  resignation 
or  otherwise,  the  same  shall  be  necessary  or  expedient. 

NOTE. — This  clause  is  intended  to  empower  the  court  to  make  appoint- 
ments in  cases  where  there  is  an  entire  vacancy  in  the  office  of  trustee. 
It  follows  the  provisions  of  clause  (a)  so  far  as  applicable. 

A  discretionary  power  vested  in  testamentary  trustees  virtute  officii 
survives  to  a  substituted  trustee  appointed  by  the  orphans'  court  under  the 
Act  of  April  22,  1846,  Section  i,  P.  L.  483. 


446  FIDUCIARIES  ACT— SECTION  56  (&),  (c),  (rf) 

Testatrix  by  her  will  bequeathed  her  residue  estate  to  her  executors 
and  trustees  in  trust  to  pay  the  income  to  B.  for  life,  with  limitations 
over.  In  a  proviso,  following  intervening  clauses  she  directed  them  to 
pay  him  $5,000  on  his  attaining  the  age  of  forty,  if  in  their  discretion 
they  deemed  it  well  to  do  so,  having  regard  to  his  character  and  ability. 
In  a  subsequent  clause  she  appointed  K.  and  F.  executors  and  trustees. 
K.  was  discharged,  F.  died,  and  a  trust  company  was  appointed  substituted 
trustee :  Held,  that  the  power  vested  in  the  trustees  virtute  officii  and 
could  be  properly  exercised  by  the  substituted  trustee. 

The  provisions  of  Section  56  (&)  of  the  Fiduciaries  Act  (which  re- 
pealed the  Act  of  April  22,  1846,  Section  i  (P.  L.  483),  do  not  apply  to 
the  question  of  the  survival  in  substituted  trustees  of  discretionary  powers 
vested  in  the  original  trustee.  Kershaw's  Est.,  27  Dist.  659. 

586.  APPOINTMENT  OF  TRUSTEE  WHERE  EXECU- 

TOR DECLINES  TO  ACT,  OR  IS  DIS- 
CHARGED; APPOINTMENT  OF  SEPARATE 
TRUSTEES  FOR  SEVERAL  PARTIES. 

(c)  In  all  cases  of  trusts  created  by  will,  and  annexed  to  the 
office  of  executor,  such  executor  may  decline  to  accept  the  trust, 
or  be  discharged  therefrom,  without  affecting  his  office  of  execu- 
tor, and  the  orphans'  court  of  the  proper  county  shall  have  power 
to  fill  the  vacancy  by  appointment;   and  if  a  trust  fund  or  estate 
is  committed  to  an  executor  or  other  trustee,  in  which  several 
cestuis  que  trust  have  or  are  entitled  to  enjoy  a  separate  interest, 
and  a  vacancy  should  in  any  manner  occur  in  the  office  of  the 
trustee  thereof,  the  said  court  may  appoint  one  or  more  trustees 
of  such  estate  or  fund,  for  each  of  the  said  cestuis  que  trust, 
on  his  or  her  application ;  and  the  said  trustee  shall  give  security 
as  in  other  cases. 

NOTE. — This  is  Section  i  of  the  Act  of  March  (April)  13,  1859,  P.  L. 
6n,  i  Purd.  1143.  The  only  change  made  is  to  substitute  "in  other  cases" 
for  "is  provided  by  existing  laws,"  at  the  end  of  the  clause. 

587.  JURISDICTION  OF  ORPHANS'  COURT  TO  BE 

EXCLUSIVE. 

(d)  The  jurisdiction  of  proceedings  under  the  provisions  of 
this  section  shall  be  exclusively  in  the  proper  orphans'  court : 
Provided,  however,  That  nothing  herein  contained  shall  be  con- 
strued to  affect  the  jurisdiction  of  any  court  of  common  pleas  in 
proceedings  pending  at  the  date  of  the  approval  of  this  act. 

NOTE. — This  clause  is  introduced  to  take  away  the  concurrent  jurisdiction 
of  the  common  pleas  to  appoint  substituted  testamentary  trustees.  This 


FIDUCIARIES  ACT— SECTIONS  56  (d)-tf  (a)  447 

involves  the  repeal  of  Sections  i  and  2  of  the  Act  of  April  14,  1828,  P.  L. 
453,  4  Purd.  4894,  Sections  18,  and  23  to  26  of  the  Act  of  June  14,  1836, 
P.  L.  634,  4  Purd.  4895-4900,  and  Section  5  of  the  Act  of  May  3,  1855, 
P.  L.  416,  4  Purd.  4900,  so  far  only  as  they  relate  to  testamentary  trustees. 
Sections  i  and  2  of  the  Act  of  March  22,  1825,  P.  L.  107,  4  Purd.  4894, 
conferring  jurisdiction  upon  the  supreme  court,  though  doubtless  obsolete 
since  the  Constitution  of  1874,  still  appear  in  the  Digests,  and  should  be 
repealed  by  the  present  act  so  far  as  they  relate  to  testamentary  trustees. 

See  Lewis'  Est,  30  Dist  391. 

588.  NON-RESIDENT  FIDUCIARIES;  CORPORA- 
TIONS OF  OTHER  STATES  AS  FIDUCIARIES 
POWERS;  APPOINTMENT  OF  NON-RESI- 
DENTS AND  FOREIGN  CORPORATIONS  AS 
FIDUCIARIES. 

SECTION  57.  (a)  Any  fiduciary  appointed  by  any  orphans'  court 
of  this  commonwealth,  or  by  virtue  of  any  last  will  and  testament, 
probated  within  this  commonwealth,  may,  if  resident  within 
this  commonwealth,  lawfully  execute  the  duties  of  his  trust, 
whether  or  not  he  is  a  resident  of  the  county  in  which 
the  trust  was  created,  or  in  which  the  decedent  had  his 
domicile.  The  court  having  jurisdiction  may,  in  its  discretion, 
appoint  or  refuse  to  appoint  as  trustee  or  guardian  any  person 
who  is  not  a  resident  of  this  commonwealth,  or  a  corporation  of 
any  state  of  the  United  States  of  America,  other  than  Pennsyl- 
vania, duly  authorized  by  its  charter  or  by  law  to  act  as  such 
fiduciary,  and  shall  require  in  all  cases  of  a  non-resident  of  this 
commonwealth,  or  of  such  corporation,  a  bond,  with  sufficient 
sureties,  conditioned  for  the  faithful  discharge  of  the  duties  of 
the  trust;  but  the  court  may,  in  its  discretion,  permit  such  cor- 
poration to  give  its  own  bond  without  sureties.  Every  appoint- 
ment by  will  of  a  trustee  or  guardian  who  is  a  non-resident  of 
this  commonwealth  shall  be  subject  to  the  approval  of  such  court 
and  the  court  may  require  the  entry  of  such  bond.  No  such 
appointment  shall  be  made  of,  nor  shall  letters  testamentary  be 
issued  to,  a  corporation  of  another  state,  unless  such  corporation 
shall  first  file  with  the  clerk  of  said  court  or  with  the  register  of 
wills,  as  the  case  may  be,  an  appointment  in  writing  of  an 
attorney-in-fact,  resident  within  the  respective  county,  upon 
whom  service  of  process  and  notices  may  be  made. 

NOTE. — This  is  Section  i  of  the  Act  of  May  17,  1871,  P.  L.  269,  4  Purd. 
4923,  confined  to  fiduciaries  who  are  within  the  scope  of  the  new  act, 
altered  in  phraseology  and  extended  to  testamentary  guardians  and  to 


448  FIDUCIARIES  ACT— SECTIONS  57  (a),  (&)-$8  (a) 

corporations  of  other  states.  The  clause  as  now  worded  is  believed  to 
express  the  meaning  of  the  ambiguous  language  of  the  Act  of  1871.  See 
Plummer's  Estate,  24  Dist.  Rep.  542.  The  last  sentence  is  new. 

589.  APPOINTMENT  OF  RESIDENT  CO-TRUSTEES. 

(&)  When  the  trustee  or  trustees  of  any  estate  shall  reside  out 
of  this  commonwealth,  and  any  part  of  the  trust  estate,  property 
or  fund  is  situated  within  this  state,  the  proper  orphans'  court 
may,  on  the  petition  of  any  of  the  parties  interested  in  said  trust 
property,  appoint  one  or  more  trustees  resident  within  this  com- 
monwealth, to  act  in  conjunction  with  said  non-resident  trustee 
or  trustees  in  the  management  and  disposition  of  said  trust ;  and 
the  said  court  shall  have  the  same  power  over  said  trustee  or 
trustees  so  appointed  that  it  has  in  other  cases  of  trust. 

NOTE.— This  is  Section  2  of  the  Act  of  March  17,  1838,  P.  L.  81,  4  Purd. 
4900,  with  slight  changes  of  phraseology.  That  section  is  recommended 
for  repeal  so  far  as  it  relates  to  trustees  concerned  with  decedent's  estates. 

590.  FOREIGN  FIDUCIARIES,— EXECUTORS,  ADMIN- 

ISTRATORS AND  TRUSTEE. 

SECTION  58.  (a)  Except  as  hereinafter  provided,  no  letters 
testamentary  or  of  administration,  or  otherwise,  which  may  be 
granted  out  of  this  commonwealth,  purporting  to  authorize  any 
person  to  intermeddle  with  the  estate  of  a  decedent,  shall  confer 
upon  such  person  any  of  the  powers  and  authorities  possessed  by 
an  executor  or  administrator  under  letters  granted  within  this 
state ;  nor,  except  as  hereinafter  provided,  shall  any  appointment 
of  a  trustee  of  a  decedent's  estate  or  any  part  thereof  by  will 
probated  out  of  this  commonwealth,  or  by  any  court  out  of  this 
commonwealth,  confer  upon  such  person  any  of  the  powers  and 
authorities  possessed  by  a  trustee  under  a  will  probated  within 
this  state  or  appointed  by  an  orphans'  court  of  this  state. 

NOTE. — This  is  founded  on  part  of  Section  6  of  the  Act  of  March  15, 
1832,  I  Purd.  1074.  The  provision  was  new  in  that  act,  the  Commissioners 
remarking:  "The  practice  of  recognizing  foreign  letters  of  administration 
is  believed  to  be  almost  peculiar  to  this  state.  It  originated  in  the  Act  of 
1705.  We  propose  an  alteration  of  the  law  in  this  respect.  In  the  case 
of  M'Cullough  v.  Young  (i  Binney  63;  and  see  i  Dall.  457),  the  court 
admit  that  much  inconvenience  may  arise  from  this  provision  of  our  law, 
and  suggest  that  it  may  be  a  fit  subject  for  legislative  interposition.  We 
have  introduced  the  last  of  these  provisions  in  consequence  of  this  sug- 
gestion and  with  entire  conviction  of  its  propriety." 


FIDUCIARIES  ACT— SECTION  58  (a),  (t),  (c)  449 

The  changes  now  made  are  to  insert  the  words  "except  as  hereinafter 
provided,"  so  as  to  except  the  cases  covered  by  the  subsequent  clauses  of 
this  section,  to  transpose  the  clause  beginning  "which  may  be  granted," 
so  that  it  stands  after  "otherwise"  instead  of  after  "decedent,"  and  to  add 
the  provision  as  to  trustees. 

A  trustee  appointed  in  another  state  to  execute  a  trust  created  by  the 
will  of  a  decedent,  domiciled  in  that  state,  there  being  no  power  or 
direction  to  sell  contained  in  the  will,  will  not  be  authorized  by  an 
orphans'  court  of  Pennsylvania  to  sell  real  estate  situated  in  this  state. 

"Clause  (fe)  contains  a  similar  provision  as  to  foreign  guardians  de- 
rived from  the  Act  of  March  29,  1832,  Section  7,  P.  L.  190,  clause  (c) 
condensed  and  revised  the  statutory  rights  of  foreign  fiduciaries  as  to 
personal  estate;  clauses  (/  and  g)  further  enlarged  their  powers  in  cer- 
tain cases,  while  clause  ( d)  substantially  reenacted  the  Act  of  June  23,  1897, 
P.  L.  200,  i  Purd.  1103,  applying  to  cases  where  the  will  conferred  a 
power  of  sale,  and,  in  view  of  Hoysradt  v.  Gas  Co.,  making  it  expressly 
applicable  to  the  case  of  a  successor  trustee.  Except,  however,  as  these 
subsequent  clauses  of  Section  58  expressly  conferred  powers  upon  foreign 
fiduciaries,  the  prohibition  in  clause  (a)  is  explicit;  it  enacts  in  terms 
that  no  appointment  of  a  trustee  by  will  probated  out  of  the  Common- 
wealth or  by  any  court  out  of  this  Commonwealth  shall  confer  upon 
such  person  any  of  the  powers  and  authorities  possessed  by  a  trustee  under 
a  will  probated  within  this  State  or  appointed  by  an  orphans'  court  in  this 
State."  GEST,  J.,  in  Jones'  Est.,  47  Pa.  C.  C.  463 ;  28  Dist.  282. 

591.  FOREIGN  GUARDIANS. 

(6)  Except  as  hereinafter  provided,  no  appointment  of  a 
guardian,  made  or  granted  by  any  authority  out  of  this  state, 
shall  authorize  the  person  so  appointed  to  interfere  with  the 
estate,  or  control  the  person  of  a  minor  in  this  state :  Provided, 
That  such  foreign  guardian  may,  at  the  discretion  of  the  orphans' 
court  having  jurisdiction,  be  appointed  by  said  court,  on  giving 
security  for  the  due  performance  of  his  trust. 

NOTE. — This  is  Section  7  of  the  Act  of  March  29,  1832,  i  Purd.  1085, 
which  was  new  in  that  act,  changed  by  inserting  the  first  four  words 
and  by  modifying  the  wording  of  the  proviso. 

See  Jones'  Est.,  47  Pa.  C.  C.  436;  28  Dist.  282. 

592.  POWERS  OF  FOREIGN  FIDUCIARIES  IN  GEN- 
^  ERAL;  AUTHENTICATION  OF  COPIES  OF 

SY)  WILLS,  OR  OTHER  AUTHORITY. 

^f  (c)  It  shall  be  lawful  for  any  executor,  administrator,  trustee, 
.  or  other  person  duly  authorized  to  take  charge  or  possession  of 
**  29 

H 

cr- 


450  FIDUCIARIES  ACT— SECTION  58  (c) 

the  personal  estate  of  any  decedent,  or  for  any  guardian  or  other 
legal  representative  of  the  estate  of  a  minor,  acting  under  letters 
testamentary  or  of  administration,  or  other  authority,  granted  by 
or  under  the  laws  of  any  other  state,  territory  or  possession  of 
the  United  States  of  America,  or  of  any  foreign  country,  to 
assign  and  transfer,  and  to  receive  the  dividends  or  interest  of, 
any  public  debt  or  loan  of  the  Commonwealth  of  Pennsylvania, 
or  of  any  county,  city,  borough,  township  or  school  district 
thereof,  or  any  stocks  or  bonds  of  any  corporation  incorporated 
under  the  laws  of  this  commonwealthfrstanding  in  the  name  of, 
or  belonging  to,  the  decedent,  minor  or  cestui  que  trust,  or  any 
<ri  s/£»c<Ko  mortgage  debt  or  indenture  of  mortgage  held  by,  or  belonging 
to,  the  decedent,  minor  or  cestui  que  trust,  upon  real  estate  situate 
within  this  commonwealth,  and  to  enter  or  cause  to  be  entered 
satisfaction  upon  the  record  of  such  indenture  of  mortgage.  Be- 
fore any  such  act  shall  be  done  by  any  such  executor,  adminis- 
trator, trustee,  guardian  or  other  person,  there  shall  be  filed  in 
the  office  of  the  register  of  wills  for  the  county  in  which  is 
located  the  office  for  the  transfer  of  such  loans,  stocks  or  bonds, 
or,  in  the  case  of  a  mortgage,  of  the  county  where  the  mortgaged 
real  estate  may  be  situated,  when  such  person  is  acting  under 
letters  or  other  authority  granted  by  or  under  the  laws  of  any 
other  state,  territory  or  possession  of  the  United  States  of  Amer- 
ica, a  copy  of  the  will,  probate  and  letters  issued  thereon,  or  of 
such  other  grant  of  authority,  duly  authenticated  in  accordance 
with  the  Acts  of  Congress ;  or,  when  such  person  is  acting  under 
letters  or  other  authority  granted  by  or  under  the  laws  of  any 
foreign  country,  a  copy  of  such  will,  probate  and  letters  issued 
thereon,  or  of  such  other  grant  of  authority,  certified  by  the  official 
custodian  of  such  documents  or  records,  under  his  official  seal  if 
any,  to  be  a  true  and  correct  copy  of  the  originals  thereof  in  his 
possession  or  under  his  control,  together  with  the  certificate  of 
the  presiding  judge  or  the  officer  having  jurisdiction  or  authority 
over  such  custodian  that  the  attestation  is  in  due  form  and  by  the 
proper  officer:  Provided,  That  before  any  such  executor,  admin- 
istrator or  trustee  shall  assign  or  transfer  any  such  loans,  stocks, 
bonds  or  mortgages,  or  receive  any  interest  or  dividends  thereon, 
or  enter  satisfaction  of  any  such  mortgage,  he  shall  also  file,  with 
said  register  of  wills,  an  affidavit  stating  that  the  said  decedent  is 
not  indebted  to  any  person  in  this  commonwealth,  and  that  the 


FIDUCIARIES  ACT— SECTION  58  (c),  (d)  451 

proposed  transfer,  assignment,  receipt  or  entry  of  satisfaction  is 
not  made  for  the  purpose  of  removing  any  of.  the  assets  of  said 
decedent  beyond  the  reach  of  any  of  the  creditors  in  this  common- 
wealth; and  any  such  transfer,  assignment,  receipt  or  entry  of 
satisfaction  without  first  making  and  filing  such  affidavit,  shall 
be  void. 

NOTE. — This  is  Section  i  of  the  Act  of  April  8,  1872,  P.  L.  44,  i  Purd. 
1103,  as  amended  by  the  Act  of  June  13,  1911,  P.  L.  890,  5  Purd.  5890, 
further  amended  so  as  to  include  the  provisions  of  Section  3  of  the  Act 
of  April  14,  1835,  P.  L.  275,  i  Purd.  1101 ;  Section  5  of  the  Act  of  March 
12,  1842,  P.  L.  67,  i  Purd.  lioi;  Section  3  of  the  Act  of  June  16,  1836, 
P.  L.  683,  i  Purd.  1102;  Section  8  of  the  Act  of  May  15,  1850,  P.  L.  767, 
i  Purd.  1102;  and  Section  i  of  the  Act  of  May  15,  1874,  P.  L.  IQS,  I 
Purd.  1 1 02. 

The  sections  of  the  Acts  of  1835  and  1842,  above  referred  to,  were 
held  to  be  confined  to  executors  and  administrators  appointed  in  one  of 
the  United  States:  Alfonso's  Executors'  Appeal,  70  Pa.  347.  The  Acts 
of  1872  and  1874  included  foreign  countries,  but  covered  only  the  transfer 
of  loans  of  the  state  and  the  city  of  Philadelphia,  and  stock  and  registered 
loans  of  Pennsylvania  corporations,  and  not  other  municipal  loans. 

Some  changes  in  phraseology  have  also  been  made  in  the  Act  of  1872 
for  the  purposes  of  clearness  and  brevity. 

See  forms  48,  49,  53. 

See  Jones'  Est.,  47  Pa.  C.  C.  436;    28  Dist.  282. 

593.  POWERS  OF  FOREIGN  EXECUTORS  AND 
TRUSTEES  AS  TO  SALE  OF  REAL  ESTATE. 

(d)  Whenever  a  citizen  of  the  United  States,  non-resident  in 
the  Commonwealth  of  Pennsylvania,  shall  have  died  owning  real 
estate  in  this  commonwealth,  and  by  his  last  will  and  testament 
shall  have  empowered  his  executor  or  trustee  to  sell  and  convey 
his  real  estate,  it  shall  be  lawful  for  said  executor  or  trustee,  or 
his  duly  appointed  successor,  although  not  a  resident  in  this 
commonwealth,  from  and  after  the  expiration  of  one  year  from 
the  death  of  such  decedent,  to  execute  any  power  of  sale  con- 
tained in  said  last  will  and  testament,  and  to  sell  and  convey  to 
the  purchaser  the  whole  or  any  part  of  such  real  estate  located 
in  this  commonwealth :  Provided,  That  before  executing  the 
power  of  sale,  a  copy  of  the  last  will,  probate  and  letters  testa- 
mentary, and  of  the  decree  appointing  such  successor,  if  any 
there  be,  duly  authenticated  as  provided  in  clause  (c)  of  this 
section,  shall  be  filed  in  the  office  of  the  register  of  wills  of  the 
county  where  the  land  is  situated :  Provided  further,  That  noth- 


452  FIDUCIARIES  ACT— SECTION  58  (d),  (*),  (/) 

ing  in  this  clause  shall  change  or  modify  the  acts  of  assembly 
relating  to  collateral  inheritances. 

NOTE.— This  is  Section  i  of  the  Act  of  June  23,  1897,  P.  L,.  200,  i  Purd. 
1103,  except  that  the  period  is  reduced  from  fiye  years  to  one  year  to 
correspond  to  the  reduction  of  the  period  of  lien  of  decedents'  debts;  in 
the  first  proviso,  "duly  authenticated  copy"  is  used  instead  of  "certified 
copy" ;  in  the  second  proviso  "clause"  is  substituted  for  "act" ;  and  the 
provisions  as  to  the  "duly  appointed  successor"  have  been  inserted:  See 
Hoysradt  v.  Gas.  Co.,  194  Pa.  251. 

The  Act  of  May  20,  1891,  P.  L.  98,  Section  i,  I  Purd.  1103,  provided 
that  conveyances  theretofore  made  under  the  authority  of  wills  proved 
as  prescribed  by  the  laws  of  the  state  of  which  the  testator  was  a  citizen 
should,  upon  the  recording  of  a  duly  certified  copy  of  the  will  in  the  office 
of  the  register  of  the  county  where  the  lands  lay,  have  the  same  force  and 
effect  as  if  the  will  had  been  duly  proved  in  Pennsylvania.  The  Act  of 
1891  was  substantially  the  same  as  the  Acts  of  May  28,  1885,  P.  L.  24, 
Section  I,  and  May  22,  1878,  P.  L.  98,  Section  I.  The  validating  Act  of 
April  2,  1915,  P.  L.  43,  6  Purd.  7288,  is  in  similar  terms.  These  validating 
acts  are  not  suggested  for  repeal. 

See  Jones'  Est.,  47  Pa.  C.  C.  463;   28  Dist.  282. 

594.  REVIVAL  OF  JUDGMENTS  BY  FOREIGN  EXEC- 

UTORS AND  ADMINISTRATORS. 

(e)  It  shall  be  lawful  for  foreign  executors  or  administrators 
to  cause  to  be  issued,  in  their  names  as  such  executors  or  admin- 
istrators, writs  of  scire  facias  within  this  commonwealth,  on  all 
judgments  in  favor  of  their  decedents,  the  lien  of  which  judg- 
ments is  about  expiring :  Provided,  That  before  any  further  pro- 
ceedings are  had,  letters  testamentary  or  of  administration  must 
be  granted  within  this  commonwealth,  as  provided  by  law. 

NOTE. — This  is  Section  i  of  the  Act  of  June  27,  1883,  P.  L.  163,  i  Purd. 
1101,  with  slight  verbal  changes. 

595.  AWARDS  TO  FOREIGN  EXECUTORS  AND  AD- 

MINISTRATORS. 

(/)  It  shall  be  lawful  for  the  orphans'  court  having  jurisdiction 
of  the  accounts  of  any  fiduciary  to  award  personal  property  to 
the  foreign  executor  or  administrator  of  a  deceased  non-resident 
creditor,  legatee  or  distributee,  when  it  shall  appear  to  the  satis- 
faction of  the  court,  by  affidavit  or  other  evidence,  that  there  are 
no  creditors  of  such  non-resident  decedent  within  this  common- 
wealth, and  when  it  shall  further  appear  by  certificate  of  the 
register  of  wills,  surrogate  or  court  of  the  proper  jurisdiction, 
duly  authenticated  as  required  by  the  Acts  of  Congress,  if  the 


FIDUCIARIES  ACT— SECTION  58  (/),  (g)  i  453 

domicile  of  such  non-resident  creditor,  legatee  or  distributee  was 
in  another  state,  territory  or  possession  of  the  United  States  of 
America,  or  by  the  proper  diplomatic  or  consular  officer  appointed 
by  the  United  States  of  America,  under  his  official  seal,  if  such 
domicile  was  in  a  foreign  country,  that  the  person  claiming  to 
receive  such  award  is  authorized  under  the  laws  of  such  state, 
territory,  possession  or  country  to  receive  the  property  of  his 
decedent:  Provided,  That  the  benefits  of  this  clause  shall  not 
extend  to  any  case  in  which  it  shall  appear  that  the  rights  of  any 
resident  of  this  commonwealth  may  be  adversely  affected  by  such 
transfer  of  property  to  such  foreign  executor  or  administrator. 

NOTE. — This  is  a  new  clause,  copied,  with  a  few  changes  in  language, 
and  with  the  insertion  of  the  words  "to  the  satisfaction  of  the  court,"  and 
"or  other  evidence,"  in  lines  5  and  6,  from  House  Bill  No.  248  of  the 
session  of  1915,  which,  the  Commissioners  are  advised,  was  vetoed. 

The  Commissioners  are  of  opinion  that  this  clause  will  eliminate  a 
hardship  that  frequently  arises  in  the  settlement  of  estates  where  a  dis- 
tributee domiciled  in  another  state  or  foreign  country  is  entitled  to  an 
award.  As  the  law  now  stands,  the  foreign  executor  or  administrator 
cannot  be  recognized  by  the  court  in  awarding  distribution;  and  the 
appointment  of  an  ancillary  executor  or  administrator  is  required  to  be 
made,  although  the  distributee  may  never  have  resided  or  done  business 
in  this  commonwealth,  and  there  is  not  the  slightest  probability  of  the 
existence  of  any  debts  due  to  our  citizens.  This  involves  delay  and  ex- 
pense, the  entry  of  security  in  the  office  of  the  register  of  wills,  with  the 
further  costs  of  filing  and  adjudication  of  an  account  before  the  bond 
can  be  released.  The  Commissioners  believe  that  the  rights  of  residents 
of  our  own  commonwealth  are  sufficiently  safeguarded  in  this  clause, 
and  therefore,  in  spite  of  the  veto  above  mentioned,  respectfully  recom- 
mend its  adoption. 

See  form  93. 

See  Jones'  Est,  47  Pa.  C.  C.  463,  28  Dist.  282;   Moss'  Est.,  29  Dist.  235. 

In  the  distribution  of  assets  of  foreign  intestates,  the  orphans'  court 
of  Allegheny  County  will  require  that  the  domicile  of  the  decedent  be 
conclusively  established  before  a  decree  will  be  made.  If  the  distributees 
are  domiciled  abroad,  their  rights  to  share  in  the  estate  must  be  clear  as 
well  as  how  said  shares  are  to  be  disbursed  either  by  consular  agencies 
or  otherwise.  Foreign  Intestates,  68  P.  L.  J.  I. 

596.  POWERS  OF  FOREIGN  GUARDIANS,  TRUSTEES, 
COMMITTEES  AND  OTHER  FIDUCIARIES, 
AS  TO  REMOVAL  OF  PROPERTY,— PROOF 
OF  APPOINTMENT  AND  QUALIFICATION 
OF  FIDUCIARY. 
(g)  i.  In  all  cases  where  any  guardian  and  his  ward,  or  trustee 

and  his  cestui  que  trust,  or  committee  and  his  lunatic,  or  any  other 


454  FIDUCIARIES  ACT— SECTION  58  (g)  i 

fiduciary  and  the  person  in  whose  interest  he  is  acting,  shall  both 
be  non-residents  of  this  state,  and  such  ward  or  cestui  que  trust 
shall  be  entitled  to  money,  personal  property  of  any  description 
or  the  proceeds  of  any  sale  of  real  estate  in  this  state,  under  the 
control  or  jurisdiction  of  any  orphans'  court,  and  such  guardian, 
trustee  or  other  fiduciary  shall  produce  satisfactory  proof  to  said 
court,  by  certificates,  that  he  has  given  bond  and  security,  with 
special  reference  to  the  money  or  personal  property  to  be  re- 
moved, in  the  state  or  country  in  which  he  and  his  ward  or  cestui 
que  trust  reside,  in  double  the  amount  of  such  money  or  of  the 
value  of  such  property,  as  guardian,  trustee  or  other  fiduciary, 
and  it  shall  be  found  that  a  removal  of  the  property  will  not  con- 
flict with  the  terms  or  limitations  attending  the  right  by  which 
the  ward  or  cestui  que  trust  owns  the  same,  and  that  no  right 
of  any  resident  of  this  commonwealth  will  be  prejudiced  by  such 
removal,  then  any  such  guardian,  trustee  or  other  fiduciary  may 
demand  or  sue  for  and  remove  any  such  money  or  property  to 
the  place  of  residence  of  himself  and  his  ward  or  eestui  que  trust. 
If  such  guardian,  trustee  or  other  fiduciary  and  his  ward  or 
cestui  que  trust  reside  in  another  state,  territory  or  possession  of 
the  United  States  of  America,  such  certificate  shall  be  authenti- 
cated as  required  by  the  Acts  of  Congress,  and,  if  they  reside  in 
a  foreign  country,  shall  be  made  by  the  court  having  jurisdiction 
of  such  guardian,  trustee  or  other  fiduciary,  and  authenticated 
by  and  under  the  official  seal  of  a  diplomatic  or  consular  officer 
appointed  by  the  United  States  of  America  and  residing  in  such 
country :  Provided,  That  if  it  shall  appear  by  such  certificate  that, 
under  the  laws  of  such  state,  territory,  possession  or  foreign 
country,  such  guardian,  trustee  or  other  fiduciary,  is  not  required 
to  enter  security,  but  that  the  interests  of  his  ward  or  cestui  que 
trust  are  safeguarded  by  a  deposit  of  the  money  or  property  in 
the  court  having  proper  jurisdiction,  then  it  shall  be  lawful  for 
the  orphans'  court  of  the  proper  county  in  this  state  to  cause 
suitable  orders  to  be  made  authorizing  the  delivering  and  passing 
over  of  such  money  or  property  to  such  court  without  the  entry 
of  security. 

NOTE.— This  is  Section  i  of  the  Act  of  May  13,  1889,  P.  L.  190,  i  Purd. 
1085,  which  amended  Section  I  of  the  Act  of  April  21,  1856,  P.  L.  495,  now 
further  amended  by  adding  the  proviso,  which  seems  to  belong  in  this 
section  rather  than  in  the  next  one,  by  including  committees  of  lunatics 
and  other  fiduciaries,  and  by  making  other  changes  as  in  House  Bill  No. 


FIDUCIARIES  ACT— SECTION  58  (g)  i,  2  455 

247  of  the  session  of  1915,  which  bill  the  commissioners  are  advised  was 
vetoed. 

Those  changes  were  to  extend  the  act  to  residents  of  foreign  countries, 
thus  supplying  an  hiatus  in  the  law,  and  to  provide  that  the  bond  must 
have  been  given  "with  special  reference  to  the  property  to  be  removed." 

In  the  present  draft,  the  condition  has  also  been  added  that  "no  rights 
of  any  resident  of  this  commonwealth  will  be  prejudiced  by  such  re- 
moval." 

The  Act  of  1889,  as  amended,  seems  to  cover  all  matters  included  in 
Section  2  of  the  Act  of  April  13,  1840,  P.  L.  319,  i  Purd.  1088,  and  Section 
i  of  the  Act  of  May  25,  1871,  P.  L,.  279,  i  Purd.  1086,  which  are  therefore 
recommended  for  repeal. 

See  Jones'  Est.,  47  Pa.  C.  C.  463,  28  Dist.  282;  Foreign  Intestate,  68 
P.  L.  J.  i. 

597.     DISCHARGE  OF  RESIDENT  FIDUCIARY. 

2.  When  such  non-resident  guardian  or  trustee  shall  produce 
an  exemplification  under  the  seal  of  the  office,  if  there  be  a  seal, 
of  the  proper  court  in  the  state  or  country  of  his  residence,  con- 
taining all  the  entries  on  record  in  relation  to  his  appointment 
and  giving  bond,  and  authenticated  as  required  by  the  Acts  of 
Congress,  or  by  a  diplomatic  or  consular  officer  appointed  by 
the  United  States  of  America,  as  provided  in  paragraph  i  of  this 
clause,  the  orphans'  court  of  the  proper  county  in  this  state  may 
cause  suitable  orders  to  be  made,  discharging  any  resident  fidu- 
ciary and  authorizing  the  delivering  and  passing  over  of  such 
personal  property,  and  also  requiring  receipts  to  be  passed  and 
filed,  if  deemed  advisable:  Provided,  That  in  all  cases  thirty 
days'  notice  shall  be  given  to  the  resident  fiduciary,  if  such  there 
be,  of  the  intended  application  for  the  order  of  removal;  and 
the  court  may  reject  the  application  and  refuse  such  order  when- 
ever it  is  satisfied  that  it  is  for  the  interest  of  the  ward  or  cestui 
que  trust  that  such  removal  shall  not  take  place,  or  that  the 
claims  of  residents  of  this  commonwealth  are  not  fully  protected. 

NOTE. — This  is  Section  2  of  the  Act  of  May  13,  1889,  P.  L.  190,  I  Purd. 
1085,  which  amended  Section  2  of  the  Act  of  April  21,  1856,  P.  L.  495, 
further  amended  substantially  as  in  House  Bill  No.  247  of  the  session  of 
1915,  except  that  the  first  proviso,  added  by  said  bill,  has  been  transferred 
to  the  preceding  paragraph,  the  word  "filed"  has  been  substituted  for 
"recorded"  as  to  receipts,  and  the  proviso  that  the  benefits  of  the  act  shall 
not  extend  to  the  citizens  of  a  state  or  country  in  which  a  similar  law  does 
not  exist  has  been  omitted. 

The  changes  made  by  said  bill  were  to  include  residents  of  foreign 
countries,  and  to  insert  in  the  proviso  the  words  "if  such  there  be."  In 


456  FIDUCIARIES  ACT— SECTION  58  (<?)  2,  (h) 

the  next  to  the  last  line,  "residents  of"  has  been  substituted  for  "creditors 
in." 

The  Commissioners  are  advised  that  House  Bill  No.  247  was  not  ap- 
proved by  the  Governor.  Notwithstanding  such  veto,  however,  the  Com- 
missioners, with  due  deference,  beg  leave  to  recommend  the  passage  of 
this  and  the  last  preceding  clause. 

See  Foreign  Intestates,  68  P.  L.  J.  i;  Jones'  Est.,  47  Pa.  C.  C.  463, 
28  Dist.  282. 

598.  AWARD  TO  FOREIGN  TRUSTEE,  WHEN  ALL 
BENEFICIARIES  FOR  A  TERM  OF  YEARS 
OR  FOR  LIFE  HAVE  REMOVED  FROM  THE 
STATE. 

(h)  When  all  the  persons  for  whose  benefit  a  valid  trust  shall 
have  been  created  by  will,  for  a  term  of  years  or  for  life,  shall 
have  removed  from  this  state  into  any  other  state,  territory  or 
possession  of  the  United  States,  to  reside  permanently  therein, 
the  orphans'  court  having  jurisdiction  of  such  trust  is  hereby 
authorized  and  empowered,  on  application  by  or  on  behalf  of  all 
the  persons  interested  in  the  trust,  to  direct  the  trustee  or  trustees 
appointed  in  and  by  said  will,  to  pay  over  said  trust  moneys,  or 
transfer  the  securities  in  which  they  may  have  been  invested,  to 
a  trustee  or  trustees  duly  appointed  by  the  court  of  such  other 
state,  territory  or  possession,  upon  the  production  to  said  court 
of  satisfactory  proof,  by  certificates,  of  the  appointment  of  such 
trustee  or  trustees  in  the  other  state,  territory  or  possession,  the 
authority  of  such  trustee  or  trustees  to  receive  such  moneys  or 
securities,  and  the  entry  of  bond  and  security  or  proof  of  the 
fact  that  under  the  laws  of  such  state,  territory  or  possession  se- 
curity is  not  required,  such  certificates  to  be  authenticated  in 
the  manner  provided  in  clause  (g),  paragraph  I  of  this  section, 
and  upon  the  production  of  satisfactory  proof  that  the  removal  of 
the  property  will  not  conflict  with  the  terms  or  limitations  at- 
tending the  rights  which  the  cestuis  que  trust  have  in  such  money 
or  securities. 

NOTE.— This  is  founded  on  Section  i  of  the  Act  of  May  8,  1889,  P.  I,. 
123,  4  Purd.  4886,  which  includes  trusts  created  by  deed  as  well  as  by 
will,  and  should  be  repealed  only  so  far  as  it  relates  to  the  latter. 

In  the  sixth  line,  "jurisdiction"  has  been  substituted  for  "cognizance," 
and  in  the  fourth  line  and  subsequently  the  words  "or  possession"  have 
been  added  after  "territory."  Instead  of  the  proviso  in  the  Act  of  May  8, 
1889,  provisions  have  been  inserted,  beginning  on  the  thirteenth  line,  con- 
forming to  those  of  the  preceding  sections  founded  on  the  Act  of  May  13, 
1889,  P.  I,.  190. 


FIDUCIARIES  ACT— SECTION  58  (/»)  457 

Section  i  of  the  Act  of  March  31,  1905,  P.  L.  91,  5  Purd.  5890,  provides: 
"Executors  and  administrators,  in  this  commonwealth,  shall  not  be  re- 
quired to  deliver  to  any  foreign  executor  or  administrator  any  fund  which 
has  been  devised  or  bequeathed,  in  whole  or  in  part,  by  the  will  of  the 
decedent,  valid  under  the  laws  of  this  commonwealth  and  duly  probated 
at  the  domicile  of  such  decedent,  where  any  person  claiming  such  fund, 
or  any  part  thereof,  is  or  shall  be  a  citizen  of  this  commonwealth;  but 
such  fund  shall  be  distributed,  under  the  direction  of  the  orphans'  court 
of  the  proper  county,  to  legatees,  devisees  and  creditors,  according  to  the 
terms  of  said  will  and  the  laws  of  this  commonwealth."  Section  2  is 
merely  a  repealer. 

The  purpose  of  this  act  is  not  clear.  If  it  means  that  the  court  in  this 
state  shall  distribute  to  resident  legatees  and  creditors,  it  seems  unneces- 
sary. If  it  means  that,  because  there  is  one  legatee  or  creditor  residing 
in  Pennsylvania,  the  court  here  shall  distribute  the  entire  estate,  it  is 
certainly  undesirable.  For  a  discussion  of  the  Act  of  1905,  see  Bertin's 
Estate,  245  Pa.  256. 

It  is  recommended  that  the  Act  of  1905  be  repealed. 

See  Foreign  Intestates,  68  P.  L.  J.  i. 

A  petition  by  a  non-resident  cestui  que  trust,  praying  for  an  order 
directing  the  resident  trustee  to  transfer  the  trust  estate  to  a  trustee  in 
another  state,  under  the  Fiduciaries  Act  of  June  7,  1917,  Section  58  (h) 
P.  L.  447,  will  be  refused  when  all  parties  interested  in  the  trust  have  not 
joined  in  the  petition. 

The  Fiduciaries  Act  does  not^apply  to  a  case  where  the  parties  interested 
resided  outside  of  this  State  at  the  time  the  testatrix  died,  but  only  to 
a  case  where  they  have  removed  from  this  State  after  her  death. 

The  act  does  not  direct  the  court  to  authorize  the  transfer  of  the 
estate,  but  authorizes  it  to  direct  the  transfer  when  satisfied  that  such 
action  will  not  conflict  with  the  terms  of  the  trust.  "This  clause  of  the 
Fiduciaries  Act  is  copied  substantially  from  the  prior  Act  of  May  8, 
1889,  Section  i,  P.  L.  123,  4  Purd.  4886,  and  we  think  its  purpose  is 
very  clear.  It  merely  authorizes  and  empowers  this  court,  on  the  petition 
of  all  persons  interested  in  the  trust,  when  all  such  persons  shall  have 
removed  from  this  state  to  another  state  or  territory,  to  direct  the  trans- 
fer of  the  trust  estate;  but  all  persons  have  not  joined  and  cannot  join 
in  the  present  application,  because  there  may  be  others  having  possible 
or  contingent  interests  in  future,  and  their  interest  should  not  be  dis- 
regarded. The  argument  in  behalf  of  the  petitioner  goes  to  the  ex- 
tent, as  logically  it  must,  that  a  life  tenant  who  has  removed  to  another 
state  has  a  legal  right  to  require  this  court  to  direct  such  a  transfer  of 
the  trust  estate  from  our  jurisdiction,  and  it  is  not  difficult  to  imagine 
the  disastrous  results  of  such  an  interpretation  of  the  act." 

"It  should  be  observed,  moreover,  that  even  if  all  the  parties  inter- 
ested had  joined  in  the  petition,  this  would  not  be  such  a  case  as  was  con- 
templated by  the  act.  When  the  testatrix  died  in  1893,  her  grandson,  the 
life  tenant,  had  been  for  some  years  a  resident  of  Massachusetts,  as  his 
petition  states  that  he  has  lived  there  for  thirty-six  years,  whereas  the 


458  FIDUCIARIES  ACT— SECTIONS  58  (/0-59  (<0 

act  in  plain  language  provides  for  a  case  where  the  parties  interested 
shall  have  removed  from  this  state,  contemplating,  of  course,  a  removal 
that  has  occurred  after  the  trust  has  gone  into  effect  But  in  this  case, 
when  the  testatrix  made  her  will  in  the  same  year  in  which  she  died, 
she  selected  two  residents  of  her  home  city  as  trustees,  and  on  the  death 
of  the  survivor,  which  event  has  occurred,  appointed  the  present  trustee, 
also  resident  here.  She  deliberately  intended  that,  although  her  bene- 
ficiary was  a  non-resident,  her  trust  estate  should  be  administered  here 
by  trustees  in  whom  she  reposed  confidence,  and  the  estate  has  been  so 
administered  for  the  past  twenty-eight  years. 

The  act  does  not  direct  the  court  to  authorize  the  transfer,  but  con- 
versely authorizes  the  court  to  direct  the  transfer,  upon  the  production 
of  satisfactory  proof  that  the  removal  of  the  property  will  not  conflict 
with  the  terms  or  limitations  attending  the  rights  which  the  cestuis  que 
trust  have  in  the  money  or  securities.  This  court  certainly  has  some  dis- 
cretion in  the  matter,  and  as  we  are  of  opinion  that  the  present  case  is 
not  such  as  was  intended  by  the  legislature,  the  petition  is  accordingly 
dismissed."  GEST,  J.,  in  Dixon's  Est.,  30  Dist  463. 

599.  GUARDIANS,— POWER  OF  ORPHANS'  COURT 
TO  APPOINT;  EFFECT  OF  APPOINTMENT. 

SECTION  59.  (a)  The  orphans'  court  of  each  county  shall  have 
the  care  of  the  persons  of  minors  resident  within  said  county,  and 
of  their  estates,  and  shall  have  power  to  admit  such  minors,  over 
the  age  of  fourteen,  when  and  as  often  as  there  shall  be  occasion, 
to  make  choice  of  guardians,  and  to  appoint  guardians  for  such  as 
are  under  the  age  of  fourteen  or  otherwise  incompetent  to  make 
choice  for  themselves.  Such  appointment  or  admission  of  a 
guardian  by  the  orphans'  court  of  the  county  in  which  the  minor 
resides,  shall  have  the  like  effect  in  every  other  county  in  this 
commonwealth,  as  in  that  by  the  orphans'  court  of  which  he  shall 
have  been  so  admitted  or  appointed. 

NOTE. — This  is  Section  5  of  the  Act  of  March  29,  1832,  i  Purd.  1083, 
altered  by  inserting  in  the  fourth  line  the  words  "over  the  age  of  four- 
teen," by  substituting  in  lines  6  and  7,  the  words  "are  under  the  age  of 
fourteen"  for  "they  shall  judge  too  young,"  and  by  omitting  the  first 
part  of  the  proviso,  which  is  covered  by  clause  (&). 

Section  5  of  the  Act  of  1832  was  derived  from  Sections  7  and  12  of  the 
Act  of  March  27,  1713,  i  Sm.  L.  81.  The  Act  of  1832  confined  the  juris- 
diction to  minors  resident  within  the  county,  and  omitted  that  part  of 
Section  7  of  the  Act  of  1713  which  empowered  the  court  "to  order  and 
direct  the  binding  or  putting  out  of  minors  apprentices  to  trades,  hus- 
bandry or  other  employment." 

See  forms  18,  19,  94,  95. 


FIDUCIARIES  ACT— SECTION  59  (a)  459 

The  parents  of  the  minor  lived  in  Philadelphia,  where  the  father  died 
in  1909.  The  mother  continued  to  reside  in  Philadelphia  until  she  re- 
married in  1913,  since  which  time  she  has  lived  with  her  second  husband 
in  Montgomery  County.  The  minor  was  taken  by  the  mother  to  their 
new  home,  where  she  now  resides  with  her  mother  and  stepfather.  On 
a  petition  to  the  Orphans'  Court  of  Philadelphia  County  to  appoint  a 
guardian  of  the  minor's  estate :  Held,  the  jurisdiction  belonged  to  the 
Orphans'  Court  of  Montgomery  County,  and  the  petition  was  dismissed. 

The  Act  of  March  29,  1832,  par.  5,  P.  L.  190,  reenacted  in  Section  59  of 
the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  vests  the  jurisdiction  to 
appoint  a  guardian  of  a  minor's  estate  in  the  orphans'  court  of  the  county 
wherein  the  minor  is  resident.  "We  are  of  opinion  that  the  jurisdiction 
to  appoint  a  guardian  of  this  minor's  estate  belongs  to  the  Orphans'  Court 
of  Montgomery  County  and  not  to  us. 

"The  question  is  a  narrow  one,  and  we  have  not  been  able  to  find  any 
decision  absolutely  controlling.  The  Act  of  March  29,  1832,  Section  5, 
Purd.  1083,  reenacted  in  Section  59  (a)  of  the  Fiduciaries  Act  of  June 
7,  1917,  P.  L.  447,  vests  the  jurisdiction  in  the  orphans'  court  of  the 
county  wherein  the  minor  is  resident.  Judge  ASHMAN,  in  Mintzer's  Est., 
2  Dist.  R.  584,  expressed  the  opinion  that  the  word  resident  was  prob- 
ably used  advisedly,  instead  of  domiciled,  and  the  supreme  court,  in 
Taney's  Appeal,  97  Pa.  74,  and  Wilkin's  Est,  146  Pa.  585,  appear  to  take 
the  same  view.  Other  courts  may  have  expressed  a  different  opinion, 
and  we  need  not  insist  upon  the  distinction  in  this  case,  but  if  such  dis- 
tinction exists,  it  would  afford  further  ground  for  our  decision." 

"We  have  examined  numerous  cases  upon  the  general  subject,  and  find 
none  that  appear  to  rule  the  present.  In  our  opinion,  there  is  no  reason 
why  the  mother,  being  the  natural  guardian  and  next  friend  of  her  child, 
should  not  be  able,  on  her  remarriage,  to  remove  into  another  county 
of  the  state  without  separation  of  her  legal  residence  from  that  of  her 
child,  and,  from  the  standpoint  of  convenience,  it  is  certainly  preferable 
that  the  guardian  of  her  child's  estate  should  be  appointed  by,  and  be 
subject  to  the  control  of,  the  court  of  the  county  where  they  both  live, 
rather  than  by  that  of  another  county  that  may  be  hundreds  of  miles 
away."  GEST,  J.,  in  Jacoby's  Est.,  47  Pa.  C.  C.  183,  28  Dist.  7. 

Testatrix  bequeathed  to  her  granddaughter  the  sum  of  $25,000  to  be 
paid  to  her  with  accumulated  interest  on  reaching  the  age  of  eighteen 
years.  On  reaching  that  age,  the  minor  petitioned  for  payment  of  the 
legacy,  which,  with  interest,  then  amounted  to  the  sum  of  $44,911.  Held, 
that  the  duty  of  the  court  to  safeguard  the  property  of  minors  under  the 
Fiduciaries  Act  of  June  7,  1917,  Sec.  59,  P.  L.  447,  required  that  the 
petition  be  refused. 

Semble :  The  direction  in  the  will  cannot  confer  upon  the  minor 
legatee  a  capacity  greater  than  that  conferred  by  the  law. 

"By  statute,  this  court  is  entrusted  with  the  care  of  the  persons  of 
minors  here  resident  and  of  their  estates :  Act  of  March  29,  1832,  Section 
5,  P.  L.  190,  I  Purd.  1083;  Fiduciaries  Act  of  June  7,  1917,  Section  59, 
P.  L.  447.  We  think  we  should,  therefore,  be  derelict  in  our  duty  if  we 


460  FIDUCIARIES  ACT— SECTION  59  (a),  (6) 

permitted  so  large  a  sum  to  be  paid  over  to  a  young  woman  of  eighteen 
years.  An  allowance  of  a  dollar  a  week  for  spending  money  is  not 
comparable  with  $45,000  paid  in  a  lump.  Minors  should  be  protected 
against  themselves  until  they  reach  the  age  when  the  Legislature  says 
that  they  are  old  enough  to  stand  on  their  own  feet  and  take  their 
chances. 

"Notwithstanding  what  was  said  in  Grauch's  Estate,  13  Dist.  R.  329, 
that  the  testator  could  make  his  own  law,  we  are  of  opinion  that  our 
duty  to  safeguard  the  property  of  minors  requires  us  to  refuse  the 
prayer  of  the  petition."  GEST,  J.,  in  Crampton's  Est.,  46  Pa.  C.  C.  273, 
26  Dist.  1060,  35  Lane.  246. 

As  the  control  of  the  interest  of  minors  in  the  money  compensation 
under  the  Workmen's  Compensation  Act  of  June  2,  1915,  P.  L.  736,  rests 
within  the  general  jurisdiction  of  the  orphans'  court,  and  this  has  not 
been  changed  by  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  the  Work- 
men's Compensation  Board  is  without  power  to  commute  the  interest  of 
minors  without  guardians,  and  to  authorize  investment  of  the  amounts 
commuted  in  real  estate  without  the  approval  of  the  orphans'  court. 

Dolan  v.  Pittsburgh  Coal  Co.,  27  Dist.  877,  66  P.  L.  J.  241. 

600.  PERSONS  OF  SAME  RELIGIOUS  PERSUASION 
AS  PARENTS  TO  BE  PREFERRED  AS  GUARD- 
IANS OF  THE  PERSON. 

(&)  Persons  of  the  same  religious  persuasion  as  the  parents 
of  the  minors  shall,  in  all  cases,  be  preferred  by  the  court,  in 
their  appointment  as  guardians  of  the  persons  of  such  minors. 

NOTE. — This  is  founded  on  the  first  part  of  the  proviso  to  Section  5 
of  the  Act  of  March  29,  1832,  i  Purd.  1083. 

The  Fiduciaries  Act  of  1917  reenacts  the  provisions  of  the  Act  of  March 
29,  1832,  and  makes  it  the  imperative  duty  of  the  court  to  appoint  a 
guardian  of  the  person  of  a  minor  of  the  same  religious  faith  as  that 
of  the  parents,  if  it  can  be  done  without  materially  affecting  their  tem- 
poral welfare. 

"It  is  very  evident,  from  the  facts  in  this  case,  that  it  was  the  expressed 
intention  of  both  parents  of  these  minors  that  they  should  be  brought 
up  in  the  Catholic  faith,  the  mother  emphasizing  this  desire  by  appointing 
a  testamentary  guardian  for  the  children  who  was  of  that  faith.  We 
feel  that  we  should  not  ignore  one  of  the  last  thoughts  and  wishes  of  the 
mother,  concerning  the  care,  religion  and  training  of  her  children;  and 
that  under  the  Acts  of  Assembly  compelling  us  to  properly  regard  the 
faith  of  the  parents  in  appointing  a  guardian  and  authorizing  us  to 
remove  a  guardian  only  for  mismanagement  and  misconduct,  we  cannot 
in  view  of  the  facts  in  this  case,  remove  the  guardian."  SCHAEFFER,  P.  J., 
in  Spencer's  Est.,  10  Berks  171. 

Both  parents  of  three  minor  children  died,  the  mother  being  a  member 
of  the  Roman  Catholic  Church,  and  the  father  a  member  of  the  Protestant 
Episcopal  Church.  The  sister  of  the  father  was  appointed  guardian  of 


FIDUCIARIES  ACT— SECTION  59  (&),   (c),   (d)  461 

the  estates  of  the  minor  children  in  the  lifetime  of  the  father.  Subsequent 
to  his  death  two  petitions  were  presented  to  the  court  for  the  appointment 
of  the  paternal  grandfather  and  the  maternal  uncle  respectively,  as  guard- 
ian of  the  persons  of  said  minors.  The  petition  for  the  appointment  of 
the  maternal  uncle  claimed  that  under  Section  59  (6)  of  the  Fiduciaries 
Act  of  1917,  the  court  was  obliged  to  appoint  a  guardian  of  the  persons, 
of  the  same  religious  persuasion  as  that  of  the  mother,  the  facts  being 
that  before  marriage,  the  father  orally  agreed  that  the  children  should  be 
brought  up  in  the  Roman  Catholic  faith,  and  consented  to  their  being 
baptized  in  that  church. 

The  court  held  that  under  the  Fiduciaries  Act,  only  when  both  parents 
were  of  the  same  religious  persuasion  was  it  mandatory  upon  it  to  appoint 
a  person  of  the  same  faith.  In  this  case  as  both  parents  were  of  different 
faiths,  it  was  for  the  court  to  do  that  which  will  be  for  the  best 
interest  of  the  minors,  and  as,  the  petitioner  for  the  appointment 
of  the  maternal  uncle  states  that  the  paternal  grandfather  is  in 
every  way  qualified  to  bring  the  children  up  properly,  and  he  further 
having  consented  to  their  being  brought  up  in  the  Roman  Catholic  faith, 
there  would  be  no  reason  why  he  should  not  be  appointed,  he  being  the 
nearest  next  of  kin,  and  the  minors'  father  in  his  lifetime  having  en- 
trusted the  care  of  two  of  the  minors  to  him,  therefore  the  paternal  grand- 
father was  appointed  guardian.  Butcher's  Est.,  35  Montg.  162;  affirmed 
in  266  Pa.  479,  109  Atl.  683. 

601.  EXECUTOR,    ADMINISTRATOR    OR    TRUSTEE 

NOT  TO  BE  APPOINTED  GUARDIAN. 

(c)  No  executor,  administrator  or  trustee  shall  be  admitted  or 
appointed,  by  the  orphans'  court,  guardian  of  a  minor  having  an 
interest  in  the  estate  under  the  care  of  such  fiduciary :   Provided, 
That  nothing  herein  contained  shall  be  construed  to  extend  to  the 
case  of  a  testamentary  guardian. 

NOTE. — This  is  Section  6  of  the  Act  of  March  29,  1832,  i  Purd.  1084, 
which  was  new  in  that  act.  The  only  change  is  to  add  "or  trustee." 

602.  PARENT  NOT  TO  BE  APPOINTED  GUARDIAN; 

WHERE  ESTATE  IS  $100  OR  LESS,  AWARD 
MAY  BE  MADE  TO  NATURAL  GUARDIAN 
OR  PERSON  MAINTAINING  MINOR. 

(d)  The  orphans'  court  shall  not  appoint  the  father  or  the 
mother  of  a  minor  as  guardian  of  the  estate  of  said  minor: 
Provided,  That  nothing  herein  contained  shall  be  construed  to 
extend  to  the  case  of  a  testamentary  guardian :    And  provided 
further,  That  where  the  estate  of  the  minor  shall  be  of  the  value 
of  one  hundred  dollars  or  less,  the  court  may,  in  its  discretion, 


462  FIDUCIARIES  ACT— SECTION  59  (<f) 

authorize  payment  or  delivery  thereof  to  the  natural  guardian  of 
the  minor  or  the  person  by  whom  the  minor  is  maintained,  with- 
out the  appointment  of  a  guardian  by  the  court  or  the  entry  of 
security. 

NOTE. — This  is  a  new  section,  framed  in  part  in  accordance  with  the 
existing  practice  in  many  counties.  The  Commissioners  regard  it  as 
always  inadvisable  and  frequently  dangerous  to  appoint  the  parent  of  a 
minor  to  be  the  guardian  of  its  estate.  Parents  are  too  often  tempted  to 
regard  the  estate  as  virtually  their  own  and  use  it  for  purposes  which 
could  not  be  approved  by  the  court;  or  even  when  actuated  by  proper 
motives  will  not  keep  the  accurate  accounts  of  the  estate  which  the  minor 
on  coming  of  age  is  entitled  to  receive.  The  consequence  may  be  either 
an  unfortunate  and  distressing  litigation,  or  perhaps  the  condonation  of 
an  injustice. 

When  the  amount  is  very  small,  it  seems  unnecessary  to  subject  the 
fund  to  the  expense  of  a  guardianship. 

Under  the  Fiduciaries  Act,  the  orphans'  court  is  vested  with  a  discre- 
tion in  minors'  estates  of  $100  or  less,  so  that  it  may  decree  the  payment 
of  the  same  to  their  natural  guardians  without  security. 

"The  foregoing  is  a  new  provision  and  vests  the  court  with  a  dis- 
cretion in  minors'  estates  of  this  amount.  In  view  of  the  fact  that  the 
mother  in  this  case,  who  is  the  natural  guardian,  is  keeping  her  children 
together  and  is  maintaining  them  and  seems  to  be  an  entirely  fit  person,  it 
is  a  proper  exercise  of  the  discretion  conferred  to  direct  the  legacies  to  be 
paid  to  her,  the  same  to  be  expended  by  her  for  the  benefit  of  the  minors 
as  in  her  judgment  may '  seem  to  their  best  interests."  MILLER,  J.,  in 
Dailey's  Est.,  27  Dist.  464;  65  P.  L.  J.  796;  31  York  132. 

While  Section  59,  clause  (rf),  of  the  Fiduciaries  Act  of  June  7,  1917, 
P.  L.  447,  forbids  the  appointment  of  a  father  as  legal  guardian  of  his 
child,  it  permits  the  court  to  decree  that  a  legacy  of  $100  or  less  be- 
queathed to  a  minor  may  be  paid  to  his  father  as  natural  guardian. 

Parents  who  have  received  such  legacies  cannot  spend  them  at  will 
and  in  the  exercise  of  their  own  judgment,  but  are  as  much  legally 
responsible  for  their  conservation  and  accretions,  and  accountable  to  the 
cestuis  que  trustent,  as  a  legally  appointed  guardian  under  bond. 

"The  section  of  the  act  under  which  this  application  is  made  is  new  and 
evidences  a  radical  departure  from  the  pre-existing  law  and  practice  rela- 
tive to  the  administration  of  the  estates  of  minors.  Other  than  the 
exercise  of  the  discretion  therein  granted  to  the  court,  the  act  is  silent 
as  to  the  actual  duties,  responsibilities  and  liability  of  the  trustee  without 
security,  so  designated  in  the  administration  of  the  trust  thus  created  and 
authorizes  a  decree  for  the  payment  of  moneys  belonging  to  minors  to 
persons  whom  the  opening  words  of  Section  59  of  the  act  prohibits  the 
appointment  of  as  legal  guardian  by  the  orphans'  court.  This  prohibition 
is  but  legislative  confirmation  of  the  uniform  opinions  of  the  Pennsyl- 
vania judiciary  as  to  the  impropriety  of  such  appointments  and  heretofore 
adopted  as  a  rule  of  practice  for  the  best  of  reasons,  so  well  understood 


FIDUCIARIES  ACT— SECTION  59  (d)  463 

as  to  render  it  unnecessary  to  here  repeat  or  cite  authorities.  We  are 
fain  to  believe  that  evils  thus  guarded  against  will  in  some  cases  follow 
the  practice  authorized  by  the  Act  of  1917,  and  that  it  would  have  been 
wiser  legislation  to  have  designated  some  responsible  trust  company  or 
bank  institution  as  custodian  of  such  funds,  thereby  effecting  the  evident 
commendable  purpose  of  the  act,  viz.,  to  save  expense  and  simplify  ad- 
ministration, while  at  the  same  time  avoiding  the  risks  attaching  to  a 
trust  reposed  in  those  bearing  parental  relation  to  the  cestuis  que  trustent. 

"The  case  of  Daley's  Estate  (should  be  Bailey's  Estate,  supra),  27 
Dist.  R.  464,  in  the  Orphans'  Court  of  Allegheny  County,  appears  to  be 
the  only  reported  similar  application  under  the  act,  and  the  closing 
language  of  the  opinion  and  order  of  MILLER,  J.,  granting  the  prayer  of 
the  petition,  leads  us  to  the  expression  of  a  different  conclusion  as  to  the 
status  of  the  parent  receiving  the  fund  than  his  language  would  imply. 

"This  being  the  first  application  in  this  jurisdiction,  we  are  led  to  state 
some  of  our  views  for  the  guidance  of  the  trustees  created  by  this  order, 
until  in  some  adverse  proceeding  we  may,  on  full  discussion  be  convinced 
otherwise. 

"The  parent  and  'natural  guardian,'  upon  receiving  the  legacies  in  ques- 
tion, holds  the  same  relation  thereto  as  attaches  to  such  relative  receiving 
similar  funds  in  the  absence  of  such  an  order. 

"Quoting  from  Evans'  Estate,  I  Dist.  R.  453,  n  Pa.  C.  C.  Reps.  324: 
'He  (the  father)  was  his  natural  guardian;  guardian  by  nature,  so  that 

if  an  estate  be  left  to  an  infant,  as  to  him, the  father  is  by  common 

law  the  guardian  and  must  account  to  his  child  for  the  profits  thereof : 
Co.  Litt.,  88.' 

"In  the  last  case  quoted  from,  a  citation  prayed  for  against  such  common 
law  guardian  was  refused  by  the  orphans'  court,  holding  that  the  remedy 
was  by  an  action  at  law. 

"The  question  whether  the  receipt  of  the  legacies  under  this  order, 
impliedly  from  the  provisions  of  the  statutes  of  1917,  changes  the  character 
of  the  recipient  from  that  of  common  law  guardian  to  that  of  a  legal 
guardian  with  security,  and  changes  the  forum  of  jurisdiction  over  such 
and  the  account  from  the  common  law  courts  to  the  orphans'  court,  we 
will  not  now  decide.  Our  only  purpose  in  this  discussion  is  to  make  clear 
the  point  that  parents  who  have  received  the  funds  in  question  from 
petitioning  executors  cannot  expend  them  at  will  and  in  the  exercise  of 
their  own  judgment,  but  are  as  much  legally  responsible  for  their  con- 
servation and  accretions  of  interest  thereto,  and  accountable  for  the 
same  to  the  cestuis  que  trustent,  as  a  legally  appointed  guardian  with 
bond  of  the  orphans'  court. 

"Our  conclusions  «are  sustained  not  only  by  the  common  law  doctrine 
above  referred  to,  but  also  by  the  language  and  spirit  of  subdivision  (<f) 
of  Section  59  of  the  Act  of  1917. 

"Although  the  petition  is  to  be  by  the  executor  of  the  estate  from  which 
the  legacies  are  payable,  and  primarily  for  his  relief  and  discharge  from 
liability  on  such  payment,  manifestly  the  interest  of  the  legatees  and  their 
property  are  also  intended  to  be  conserved,  and  we  cannot  conceive  that 
the  recipient  shall  have  unlimited  and  uncontrolled  use  and  expenditure 


464  FIDUCIARIES  ACT— SECTION  59  (<*),  (O.  (/) 

of  the  money  when  such  are  prohibited  of  similar  sums  received  by  any 
other  trustee. 

"We  are  aware  that  it  is  unusual  for  a  court  to  express  an  opinion 
on  an  abstract  proposition,  but  in  view  of  the  ambiguity  of  the  act,  not 
so  much  from  what  is  expressed  therein,  but  more  from  what  is  omitted, 
we  have  assumed  to  state  our  views  as  justified  by  way  of  proper  judiciary 
suggestion  to  those  becoming  custodians  of  the  funds  in  question."  SMITH, 
P.  J.,  in  Storer's  Est,  28  Dist.  215. 

603.  APPOINTMENT  OF  GUARDIANS  OF  ESTATES 

OF  MINORS  RESIDING  OUT  OF  THE  COM- 
MONWEALTH. 

(e)  The  orphans'  court  of  each  county  shall  have  power  to 
appoint  guardians  of  the  estates  of  minors  residing  out  of  the 
commonwealth,  in  all  cases  where  such  minors  are  possessed  of 
estates  lying  within  the  jurisdiction  of  said  court,  upon  the  peti- 
tion of  the  minors,  if  over  the  age  of  fourteen,  and  if  it  be 
reasonably  practicable  for  such  minors  to  present  their  own 
petitions,  and  in  other  cases  on  the  petitions  of  persons  qualified 
to  act  as  their  next  friends,  without  requiring  the  said  minors 
to  appear  in  court  to  make  choice  of  such  guardians. 

NOTE. — This  is  Section  44  of  the  Act  of  April  25,  1850,  P.  L.  576,  I 
Purd.  1084,  altered  by  substituting  the  words  beginning  "if  over  the  age 
of  fourteen"  and  ending  "next  friends"  for  "or  any  of  their  relatives  or 
friends  or  any  person  interested  in  such  estates." 

604.  APPOINTMENT  OF  GUARDIANS  FOR  MINORS 

IN  SERVICE  OF  UNITED  STATES,  OR 
WHOSE  APPEARANCE  IS  PHYSICALLY  IM- 
POSSIBLE OR  UNNECESSARILY  EXPEN- 
SIVE. 

(/)  The  orphans'  court  of  each  county  shall  have  power  to 
appoint  guardians  of  the  persons  and  estates  of  minors,  residents 
of  such  county,  who  may  be  absent  in  the  service  of  the  United 
States  or  who  may  be  physically  unable  to  appear  and  choose  for 
themselves,  or  who  may  be  so  distant  from  the  seat  of  justice  of 
the  county  as  to  make  it  unnecessarily  expensive  for  them  to 
appear,  upon  the  petition  of  the  minors,  if  over  the  age  of  four- 
teen, and  if  it  be  reasonably  practicable  for  such  minors  to  present 
their  own  petitions,  and  in  other  cases  on  the  petitions  of  persons 
qualified  to  act  as  their  next  friends,  without  requiring  the  said 
minors  to  appear  in  court  to  make  choice  of  such  guardians: 
Provided,  That  when  the  appointment  sha.1*  be  made  on  petition 


FIDUCIARIES  ACT— SECTION  59  (/),  (g)  465 

of  a  next  friend,  the  minor,  if  of  the  age  of  fourteen  or  on  at- 
taining that  age,  may  subsequently  appear  and  choose  his  guard- 
ian. 

NOTE.— This  is  Section  i  of  the  Act  of  August  25,  1864,  P.  L.  1029,  i 
Purd.  1085,  altered  so  as  to  conform  to  the  provisions  of  the  last  preceding 
clause,  and  by  inserting,  in  the  third  line,  "residents  of  such  county." 

605.    BONDS  OF  GUARDIAN'S. 

(g)  The  orphans'  court  having  jurisdiction,  whenever  they 
may  deem  it  proper,  may  require  a  bond,  with  good  and  sufficient 
corporate  security,  or  with  two  good  and  sufficient  individual 
sureties,  from  every  guardian  of  a  minor,  whether  admitted  or 
appointed  by  the  court,  or  appointed  by  will,  or,  in  the  case  of  a 
corporation  duly  authorized  by  its  charter  or  by  law  to  act  as 
guardian,  said  court  may  permit  such  corporation  to  give  its 
own  bond  without  surety.  Guardians'  bonds  shall  be  filed  in  the 
office  of  the  clerk  of  the  court,  and  be  considered  in  trust  for  all 
persons  interested ;  the  bonds  shall  be  taken  to  the  commonwealth 
in  such  penalties  as  the  court  shall  direct  and  the  condition  shall 
be  in  the  following  form: 

The  condition  of  this  obligation  is  such,  that  if  the  above- 
bounden  A.  B.,  guardian  of  C.  D.,  a  minor  child  of  E.  F.,  (late 
of  ,  deceased,)  shall,  at  least  once 

in  every  three  years,  and  at  any  other  time  when  required  by  the 
orphans'  court  for  the  county  of  ,  render 

a  just  and  true  account  of  the  management  of  the  property  and 
estate  of  the  said  minor,  under  his  care,  and  shall  also  deliver 
up  the  said  property,  agreeably  to  the  order  and  decree  of  the 
said  court,  or  the  directions  of  law,  and  shall,  in  all  respects, 
faithfully  perform  the  duties  of  guardian  of  the  said  C.  D.,  then 
the  above  obligation  shall  be  void,  otherwise  it  shall  be  and  remain 
in  full  force  and  virtue. 

Provided,  That  nothing  in  this  act  contained  shall  be  construed 
to  deprive  a  minor  of  any  action  or  remedy  to  which  he  may  be 
entitled  at  the  common  law,  against  his  guardian  for  any  cause 
whatever. 

NOTE. — This  is  Section  8  of  the  Act  of  March  29,  1832,  i  Purd,  1086, 
altered  by  substituting  new  provisions  as  to  the  sureties  in  place  of  the 
old  phrase  "with  good  and  sufficient  security." 

Section  8  of  the  Act  of  1832  was  founded  on  Section  i  of  the  Act  of 
March  30,  1821,  P.  L.  153. 

30 


466         FIDUCIARIES  ACT— SECTION  59(0),  (h),  (i),  ,(;')  i 

It  is  noted  in  Purdon  that  in  Perry  County  the  bonds  are  required  by 
the  Act  of  March  27,  1869,  P.  L.  488,  to  be  recorded,  and  such  record 
is  evidence. 

See  form  21. 

An  administrator  of  a  deceased  minor  has  a  standing  to  cite  the  minor's 
guardian  to  file  an  account  where  it  appears  that  the  latter  never  had  filed 
an  account,  and  was  under  an  inadequate  bond. 

Cook's  Est.,  48  Pa.  C.  C.  599  (s.  c.  sub  nom.  Kerr's  Petition),  29 
Dist.  909. 

606.  INVENTORY  TO  BE  FILED  BY  GUARDIAN. 

(h)  Every  guardian  shall,  within  thirty  days  after  any  prop- 
erty of  his  ward  shall  have  come  into  his  hands  or  possession,  or 
into  the  hands  and  possession  of  any  person  for  him,  file  in  the 
office  of  the  clerk  of  the  court  a  just  and  true  inventory  and 
statement,  on  oath  or  affirmation,  of  all  such  property  or  estate. 

NOTE. — This  is  Section  9  of  the  Act  of  1832,  i  Purd.  1086,  which  was 
new  in  that  act.  The  word  "such"  is  omitted  before  "guardian"  in  the 
first  line. 

See  form  20. 

607.  ALLOWANCE  FOR  SUPPORT  AND  EDUCATION 

OF  MINOR. 

(i)  When  any  one  shall  die,  leaving  an  infant  child  or  children, 
without  having  made  an  adequate  provision  for  the  support  and 
education  of  such  child  or  children,  during  their  minority,  the  or- 
phans' court  may  direct  a  suitable  periodical  allowance,  out  of 
the  minor's  estate,  for  the  support  and  education  of  such  minor, 
according  to  the  circumstances  of  each  case;  which  order  may, 
from  time  to  time,  be  varied  by  the  court,  according  to  the  age 
of  the  minor  and  the  circumstances  of  the  case. 

NOTE. — This  is  Section  13  of  the  Act  of  1832,  i  Purd.  1088,  which  was 
new  in  that  act. 

See  forms  96-100. 

608.  ACCOUNTS  OF  GUARDIANS,— TRIENNIAL  AC- 

COUNTS. 

(/)  i.  Every  guardian,  whether  required  by  the  court  to  give 
security  or  not,  shall,  at  least  once  in  every  three  years,  and  at 
any  other  time  when  so  required  by  the  court,  render  an  account 


FIDUCIARIES  ACT— SECTION  59  (/)  i,  2,  3,  4,  5  467 

of  the  management  of  the  minor's  property  under  his  care,  which 
accounts  shall  be  filed  in  the  office  of  the  clerk  of  the  orphans' 
court,  for  the  information  of  the  court  and  the  inspection  of  all 
parties  concerned. 

An  administrator  of  a  deceased  minor  has  a  standing  to  cite  the  minor's 
guardian  to  file  an  account  where  it  appears  that  the  latter  never  had  filed 
an  account,  and  was  under  an  inadequate  bond. 

Cook's  Est,  48  Pa.  C.  C.  599  (s.  c.  sub  nom.  Kerr's  Petition),  29 
Dist.  909. 

609.  GUARDIAN  OR  NEXT  FRIEND  MAY  PETITION 

TO  HAVE  ACCOUNT  AUDITED. 

2.  After  the  filing  of  such  account  or  accounts,  such  guardian, 
or  any  person  qualified  to  act  as  next  friend  of  the  minor,  may 
petition  the  orphans'  court  of  the  respective  county  for  leave 
to  have  said  account  or  accounts  examined  or  audited  and  con- 
firmed, with  the  same  force  and  effect  as  executors',  adminis- 
trators' and  trustees'  accounts  are  examined  or  audited  and  con- 
firmed. 

610.  CONTENTS  OF  PETITION. 

3.  Such  petition  shall  set  forth  the  reason  why  such  account 
or  accounts  should  be  examined  or  audited  and  confirmed,  and 
shall  contain  full  information  as  to  who  may  be  next  of  kin  or 
nearest  relative  of  age  to  such  minor  or  minors,  and  all  others 
interested  in  the  minor's  estate,  together  with  their  addresses  il 
it  is  possible  to  give  them. 

611.  NOTICE  OF  FILING  OF  ACCOUNT  AND  PETI- 

TION. 

4.  The  court  may  thereupon  direct  to  whom,  and  what,  notice, 
if  any,  shall  be  given  to  such  next  of  kin,  or  nearest  relative  of 
age,  or  the  parties  interested  in  said  minor's  estate,  including  the 
minor  or  minors  if  fourteen  years  of  age  or  over,  of  the  filing 
of  said  account  or  accounts  and  presentation  of  said  petition. 

612.  AUDIT     OF     ACCOUNT;      APPOINTMENT     OF 

GUARDIAN  AD  LITEM;    CONFIRMATION. 

5.  After  the  filing  of  due  proof  of  the  services  of  said  notice, 
if  any  be  required  by  the  court,  the  court  may,  if  it  be  satisfied 
that  any  reasonable  necessity  exists  for  the  examination  or  audit 


468  FIDUCIARIES  ACT— SECTION  59  0')  5,  6,  7,  8 

and  confirmation  of  such  account  or  accounts,  asked  by  said 
petition,  thereupon  appoint  some  suitable  person  to  act  as  guard- 
ian ad  litem  for  the  minor  or  minors  interested  in  said  account 
or  accounts;  and  the  same  shall  be  thoroughly  examined  by  said 
guardian  ad  litem,  who  shall  make  report  to  the  court  of.  the 
result  of  his  examination;  or  the  court  may  examine  and  audit 
said  account  itself ;  and,  after  said  examination  or  audit  is  com- 
pleted, a  final  decree  of  confirmation  as  to  the  matters  contained 
in  said  account  or  accounts,  and  said  report  or  reports,  and  said 
audit  or  audits,  shall  be  made  by  the  court,  which  decree  of 
confirmation  shall  be  final  and  conclusive  as  to  matters  contained 
in  said  accounts,  reports  or  audits  and  decrees,  with  the  same 
force  and  effect  as  such  decrees  now  have  in  respect  to  the 
accounts  of  executors,  administrators  and  trustees  and  the  audits 
thereof. 

613.  PAYMENT  OF  COSTS. 

6.  The  costs  of  said  audits  or  examinations,  including  a  fee 
for  said  guardian  ad  litem  to  be  fixed  by  the  court,  shall  be 
allowed  as  part  of  the  administration  expenses,  and  be  paid  by 
such  guardians  out  of  the  property  of  the  ward  in  their  hands 
and  allowed  as  credits  in  said  decrees  or  the  said  costs  shall,  in 
the  discretion  of  the  court,  be  paid  by  the  said  guardians  per- 
sonally. 

614.  APPEALS  AND  REHEARINGS. 

7.  Appeals  from  such  decrees,  and  rehearings  of  such  accounts 
shall  be  allowed,  in  the  same  manner  and  form,  and  with  the 
same  force  and  effect,  as  are  allowed  in  the  similar  cases  of 
other  fiduciaries. 

615.  FINAL  ACCOUNTS. 

8.  Every  such  guardian,  unless  previously  discharged  or  re- 
moved, shall,  on  the  arrival  of  his  ward  at  full  age,  file  in  the 
register's  office  a  full  and  complete  account  of  his  management 
of  the  minor's  property  under  his  care,  including  all  the  matters 
embraced  in  each  partial  account,  except  where  an  examination 
or  audit,  and  final  decree  of  confirmation,  has  taken  place,  as 
hereinbefore  provided,  in  which  case   said   final  account   shall 
include  only  such  matter  as  were  not  included  in  such  former 
accounts  and  decrees  aforesaid.    And  the  decree  of  the  orphans' 


FIDUCIARIES  ACT— SECTION  59  (/)  8,  (fc)  469 

court  upon  such  final  account  shall,  like  other  decrees  of  the 
court,  be  conclusive  upon  all  parties,  unless  reversed,  modified  or 
altered  on  appeal. 

NOTE. — This  is  Section  10  of  the  Act  of  1832,  i  Purd.  1086,  as  amended 
by  the  Act  of  June  9,  1911,  P.  L.  744,  5  Purd.  5887,  now  divided  into 
numbered  paragraphs  because  of  its  excessive  length.  The  first  para- 
graph was  copied  from  the  first  clause  of  Section  3  of  the  Act  of  March 
30,  1821,  P.  L.  153.  The  last  was  new  in  the  Act  of  1832.  The  others 
were  added  by  the  amendment  of  1911. 

The  only  changes  now  made  are  to  strike  out  the  word  "such,"  before 
"guardian"  in  the  first  line  of  paragraph  i,  so  as  to  make  the  clause 
apply  to  testamentary  as  well  as  statutory  guardians,  to  substitute  the 
word  "file"  for  "settle,"  "partial  account"  for  "partial  settlement," 
"final  account"  for  "final  accounts,"  in  the  last  paragraph;  and  "rehear- 
ings  of  such  accounts"  for  "rehearings  of  such  decrees,"  and  "similar 
cases  of  other  fiduciaries,"  for  "cases  of  decrees  made  in  executors', 
administrators',  and  trustees'  accounts,"  in  paragraph  7.  In  paragraph  6, 
the  words  beginning  "or  the  said  costs,"  are  new. 

"The  account  here  required  is  of  the  guardian's  management  of  such 
property  of  his  ward  as  has  come  under  his  case.  Where  no  property 
of  the  ward  has  come  into  his  possession  the  guardian  manifestly  can  be 
under  no  necessity  of  filing  an  account.  With  nothing  to  account  for, 
there  could  be  no  purpose  in  accounting."  SCHAEFFER,  P.  J.,  in  Devere's 
Est.,  13  Berks  242. 

An  administrator  of  a  deceased  minor  has  a  standing  to  cite  the  minor's 
guardian  to  file  an  account  where  it  appears  that  the  latter  never  had  filed 
an  account,  and  was  under  an  inadequate  bond.  Cook's  Est.,  48  Pa.  C.  C. 
509  (s.  c.  sub  nom.  Kerr's  Petition),  29  Dist.  909. 

616.  NOTICE  TO  GUARDIAN  OF  PROCEEDINGS  AF- 
FECTING INTERESTS  OF  MINOR;  APPOINT- 
MENT OF  GUARDIANS  AD  LITEM. 

(£)  In  all  cases  in  which  proceedings  may  be  had  in  any  or- 
phans' court,  affecting  the  interest  of  a  minor,  notice  of  such 
proceedings  shall  be  given  to  the  guardian  of  such  minor  in  the 
same  manner  as  is  provided  by  law  in  the  case  of  persons  of  full 
age.  If  such  minor  has  no  guardian  appointed  by  an  orphans' 
court  of  this  commonwealth,  or  by  will  probated  within  this 
commonwealth,  the  orphans'  court  in  which  such  proceedings 
shall  be  pending  shall  appoint  a  guardian  ad  litem  for  such  minor 
in  the  same  manner  as  is  provided  by  this  act  in  the  case  of 
ordinary  applications  for  the  appointment  of  guardians.  If  such 
minor  or  his  next  friend  shall  fail  or  refuse  to  apply  for  the 
appointment  of  a  guardian  ad  litem,  as  aforesaid,  then  such 


470  FIDUCIARIES  ACT— SECTIONS  59  (Jb)-6o  (a) 

guardian  shall  be  appointed  by  said  court  on  petition  filed  by  any 
person  interested  in  such  proceedings.  Notice  shall  be  served, 
as  aforesaid,  upon  such  guardian  ad  litem  whenever  notice  shall 
be  requisite. 

NOTE. — This  is  founded  on  Section  53  of  the  Act  of  March  29,  $832, 
3  Purd.  3372,  which  was  new  in  that  act. 

After  "minor"  in  the  fourth  line,  the  following  words  are  omitted: 
"if  such  guardian  be  resident  within  the  county,  or  within  forty  miles  of 
the  seat  of  justice  of  the  county,"  and  in  the  fifth  line,  the  word 
"resident"  is  omitted  before  "persons."  After  "will"  in  the  seventh  line, 
the  words  "probated  within  this  commonwealth"  have  been  added. 

The  subsequent  part  of  the  section  has  been  remodeled  so  as  to  conform 
to  the  provisions  for  appointment  of  guardians  in  general,  with  a  method 
for  appointment  in  case  the  minor  and  his  next  friend  fail  to  act. 

See  forms  57,  101,  102. 

"The  orphans'  court  has  no  authority  to  award  compensation  to  a 
guardian  ad  litem  out  of  an  estate  in  which  his  wards  have  no  interest." 
Per  Mr.  Justice  SCHAEFFER,  in  Boyd's  Est.,  270  Pa.  50. 

617.     TRUSTEES    DURANTE    ABSENTIA,— PETITION 
AND  APPOINTMENT. 

SECTION  60.  (a)  Whenever  it  shall  be  made  known  to  the  or- 
phans' court  of  the  county  in  which  shall  be  found  all  or  the 
greater  portion  of  the  estate,  within  this  commonwealth,  of  any 
person  who  has  been  a  resident  either  of  this  commonwealth  or 
of  any  other  state,  territory,  or  possession  of  the  United  States, 
or  of  any  foreign  country,  and  who  has  absented  himself  from 
his  usual  place  of  abode,  by  the  petition,  verified  by  affidavit,  of 
the  husband,  wife  or  next  of  kin  of  such  person,  or  other  persons 
interested,  in  the  order  named,  such  petition  being  supported  by 
the  affidavits  of  at  least  two  disinterested  residents  of  the  city, 
borough,  township,  or  other  territorial  subdivision  where  such 
person  was  last  known  to  reside,  that  such  person  has  been  absent 
from  his  usual  place  of  abode  for  the  space  of  one  year,  that  his 
whereabouts  is  not  and  has  not  been  known  for  the  space  of  one 
year,  and  he  has  left  an  estate,  either  real  or  personal,  or  both, 
situated,  owing  or  belonging  to  him,  within  this  commonwealth 
without  any  person  to  take  charge  of  or  manage  the  same,  it  shall 
be  lawful  for  said  court  to  appoint  one  or  more  trustees  who 
shall  take  charge  of  and  manage  the  estate  of  such  person,  so 
being  absent,  and  who  shall  be  under  the  control  and  direction  of 
said  court. 


FIDUCIARIES  ACT— SECTION  60  (a),  (&),  (c)  i  471 

NOTE. — This  is  Section  I  of  the  Act  of  April  u,  1879,  P.  L.  21,  4  Purd. 
4904,  as  amended  by  the  Act  of  March  30,  1905,  P.  L.  77,  7  Purd.  7702, 
altered  so  as  to  combine  with  it  the  provisions  of  Sections  2  and  3  of  the 
Act  of  1905,  so  as  to  provide  for  the  affidavits  of  two  disinterested  resi- 
dents in  all  cases  and  to  substitute  "city"  for  "ward,"  and  so  as  to  omit 
the  proviso. 

618.  BOND,  INVENTORY  AND  ACCOUNTS. 

(&)  Such  trustee  or  trustees,  before  taking  charge  of  such 
estate,  shall  give  bond  in  twice  the  amount  of  the  personal  prop- 
erty, and  seven  years'  rental  of  real  estate,  with  sufficient  cor- 
porate security  or  two  sufficient  individual  sureties,  to  be  ap- 
proved by  said  court,  for  the  faithful  discharge  of  his  or  their 
duties,  and  shall,  within  thirty  days  after  his  or  their  appoint- 
ment, file  an  inventory  of  said  estate,  and  render  an  account  at 
least  once  in  three  years,  or  oftener  if  required  by  said  court ; 
Provided,  That  in  the  case  of  a  corporation  duly  authorized  by 
its  charter  or  by  law  to  act-  as  such  trustee,  said  court  may  per- 
mit such  corporation  to  give  its  own  bond  without  surety. 

NOTE. — This  is  Section  2  of  the  Act  of  April  n,  1879,  P.  L.  21,  4  Purd. 
4904,  with  the  insertion  of  the  words  "trustee  or"  in  the  first  line,  of  the 
provisions  as  to  corporate  or  individual  sureties  and  of  the  proviso. 

619.  DUTIES  OF  TRUSTEE  WHEN  ABSENT  PERSON 

RETURNS  OR  DIES  WITHIN  SEVEN  YEARS 
OR  WHERE  LETTERS  TESTAMENTARY  OR 
OF  ADMINISTRATION  ARE  ISSUED  ON  THE 
GROUND  OF  HIS  PRESUMED  DEATH. 

(c)  If  such  person  so  being  absent  shall  return  before  the  ex- 
piration of  seven  years  from  the  time  when  he  was  last  heard  of, 
or  before  letters  testamentary  or  of  administration  shall  have 
been  issued  in  his  estate  on  the  ground  of  his  presumed  death,  or, 
in  case  such  letters  shall  have  been  so  issued,  before  the  said 
trustee  or  trustees  shall  have  paid  or  delivered  over  the  prop- 
erty or  estate  to  the  executors  or  administrators  so  appointed, 
then  said  trustee  or  trustees  shall  render  an  account  and  restore 
to  such  person  the  property  and  estate  after  deducting  the  reason- 
able expenses  of  said  trust  and  compensation  of  said  trustee  or 
trustees.  If  such  absent  person  shall  die  within  such  period  of 
seven  years,  and  letters  testamentary  or  of  administration  shall 
be  duly  issued  in  his  estate,  or  if,  after  the  expiration  of  said 
period  of  seven  years,  letters  testamentary  or  of  administration 


472.  FIDUCIARIES  ACT— SECTIONS  60  (c)  1-61-62-63 

shall  be  issued  in  his  estate  on  the  ground  of  his  presumed  death, 
then  said  trustee  or  trustees  shall  render  an  account  and  pay  and 
deliver  over  to  the  executors  or  administrators  of  such  person 
the  property  and  estate  after  deducting  expenses  and  compen- 
sation as  aforesaid. 

NOTE. — This  is  founded  upon  Section  3  of  the  Act  of  April  n,  1879, 
P.  L.  21,  4  Purd.  4904,  which  has  been  redrafted  in  order  to  avoid  conflict 
with  the  provisions  of  the  new  act  as  to  presumed  decedents. 

Section  4  of  the  Act  of  April  11,  1879,  P.  L.  21,  4  Purd.  4905,  validating 
previous  cases,  seems  to  serve  no  purpose  now,  and  should  be  repealed. 

620.     IMMATERIAL  VARIATION  FROM  FORMS  NOT 
TO  VITIATE  PROCEEDINGS. 

SECTION  61.  No  immaterial  variation  from  the  forms  given 
and  prescribed  in  and  by  this  act,  shall  vitiate  or  render  void  any 
proceedings  in  which  said  forms  shall  be  used. 

NOTE. — This  is  Section  43  of  the  Act  of  March  15,  1832,  i  Purd.  1072. 

622.  SHORT  TITLE. 

SECTION  62.  This  act  shall  be  known  and  may  be  cited  as  the 
Fiduciaries  Act  of  1917. 

623.  REPEALER. 

SECTION  63.  The  following  acts  and  parts  of  acts  of  assembly 
are  hereby  repealed  as  respectively  indicated.  The  repeal  of 
the  first  section  of  an  act  shall  not  repeal  the  enacting  clause. 

An  act  entitled  "An  Act  directing  the  order  of  payment  of 
debts  of  persons  deceased,"  passed  January  12,  1705 — 6,  2  Stat- 
utes at  Large,  198,  Chapter  134,  absolutely. 

Section  2  to  7  inclusive,  and  10  to  13  inclusive,  of  an  act 
entitled  "An  Act  for  establishing  orphans'  courts,"  passed  March 
27,  1713,  i  Sm.  L.  81,  absolutely. 

An  act  entitled  "An  Act  for  the  more  easy  recovery  of  legacies," 
passed  March  21,  1772,  i  Sm.  L.  383,  absolutely. 

Section  5  of  an  act  entitled  "An  Act  for  prevention  of 
frauds  and  perjuries,"  passed  March  21,  1772,  i  Sm.  L,.  389, 
absolutely. 

An  act  entitled  "An  Act  for  continuing  an  act,  entitled  An  Act 
for  the  more  easy  recovery  of  legacies,"  passed  October  9,  1779, 
i  Sm.  L.  473,  absolutely. 


FIDUCIARIES  ACT— SECTION  63  473 

Section  8  of  an  act  entitled  "An  Act  to  establish  the  judicial 
courts  of  this  commonwealth,  in  conformity  to  the  alterations 
and  amendments  in  the  constitution,"  passed  April  13,  1791,  3 
Sm.  L.  28,  absolutely. 

An  act  entitled  "An  Act  to  enable  executors  and  administra- 
tors, by  leave  of  court,  to  convey  lands  and  tenements  contracted 
for  with  their  decedents,  and  for  other  purposes  therein  men- 
tioned," passed  March  31,  1792,  3  Sm.  L.  66,  absolutely. 

Sections  i,  2,  and  14  to  21  inclusive  of  an  act  entitled  "An  Act 
directing  the  descent  of  intestates'  real  estates,  and  distribution 
of  their  personal  estates,  and  for  other  purposes  therein  men- 
tioned," passed  April  19,  1794,  3  Sm.  L,.  143,  absolutely. 

Sections  I  to  4  inclusive,  and  9,  of  an  act  entitled  "An  Act 
supplementary  to  the  act,  entitled  'An  Act  directing  the  descent 
of  intestates  real  estates,  and  distribution  of  their  personal  es- 
tates, and  for  other  purposes  therein  mentioned,' "  passed  April 
4>  1797>  3  Sm.  L,.  296,  absolutely. 

An  act  entitled  "An  Act  declaring  the  power  and  authority 
given  by  any  last  will  and  testament  to  executors  to  sell  and 
convey  real  estates,  to  be  and  remain  in  the  survivors  or  survivor 
of  them,  unless  otherwise  expressed  in  the  will  of  the  testator, 
and  for  other  purposes  therein  mentioned,"  passed  March  12, 
1800,  3  Sm.  L.  433,  absolutely. 

An  act  entitled  "An  Act  authorizing  executors  and  administra- 
tors, in  certain  cases,  to  convey  lands  sold  by  their  decedents 
by  order  of  orphans'  court,"  approved  April  2,  1802,  P.  L.  133, 
absolutely. 

An  act  entitled  "A  supplement  to  the  act  entitled,  'An  Act 
to  enable  executors  and  administrators,  by  leave  of  court,  to 
convey  lands  and  tenements  contracted  for  with  their  decedents, 
and  for  other  purposes  therein  mentioned,' "  approved  March 
12,  1804,  P.  L.  271,  absolutely. 

Section  3  of  an  act  entitled  "An  Act  to  amend  certain  parts 
of  an  act,  entitled  'An  Act  supplementary  to  the  several  acts  of 
this  commonwealth,  concerning  partitions  and  for  other  purposes 
therein  mentioned,' "  approved  March  26,  1808,  P.  L.  144,  abso- 
lutely. 

Section  2  of  an  act  entitled  "An  Act  relative  to  dower,  and 
for  other  purposes,"  approved  April  i,  1811,  P.  L.  198,  absolutely. 

An  act  entitled  "A  supplement  to  the  act  entitled,  'An  Act 
declaring  the  power  and  authority  given  by  any  last  will  and 


474  FIDUCIARIES  ACT-SEcrioN  63 

testament  to  executors  to  sell  and  convey  real  estates,  to  be  and 
remain  in  the  survivors  or  survivor  of  them,  unless  otherwise 
expressed  in  the  will  of  the  testator,  and  for  other  purposes 
therein  mentioned,' "  approved  February  7,  1814,  P.  L.  44, 
absolutely. 

An  act  entitled,  "An  Act  to  compel  trustees  to  account  in 
certain  cases,  and  for  other  purposes,"  approved  February  17, 
1818,  P.  L.  104,  in  so  far  as  it  relates  to  testamentary  trustees. 

An  Act  entitled,  "A  further  supplement  to  the  act  entitled 
'An  Act  to  enable  executors  and  administrators  by  leave  of  the 
court  to  convey  lands  and  tenements  contracted  for  with  their 
decedents,  and  for  other  purposes,' "  approved  March  10,  1818, 
P.  L.  183,  absolutely. 

Section  7  of  an  act  entitled,  "An  Act  to  compel  assignees 
to  settle  their  accounts,  and  for  other  purposes,"  approved  March 
24,  1818,  P.  L.  285,  in  so  far  as  it  relates  to  fiduciaries  subject 
to  the  jurisdiction  of  the  orphans'  court. 

Section  2  of  an  act  entitled  "An  Act  to  limit  the  time  of 
appeal  in  cases  of  divorce,  and  of  the  settlement  of  the  accounts 
of  guardians,  executors  and  administrators,"  approved  February 
8,  1819,  P..L.  58,  absolutely. 

Section  2  of  an  act  entitled  "A  further  supplement  to  an 
act,  entitled  'An  Act  to  enable  the  executors  and  administrators 
by  leave  of  court,  to  convey  lands  and  tenements  contracted  for 
with  their  decedents,  and  for  other  purposes  therein  mentioned,' 
passed  the  thirty-first  of  March,  one  thousand  seven  hundred  and 
ninety-two,"  approved  February  5,  1821,  P.  L.  25,  absolutely. 

An  act  entitled  "An  Act  relative  to  guardian's  of  minor 
children,"  approved  March  30,  1821,  P.  L.  153,  absolutely. 

Section  2  of  an  act  entitled,  "An  Act  to  encourage  domestic 
industry,  and  promote  the  comfort  of  the  poor,"  approved  March 
31,  1821,  P.  L.  178,  absolutely. 

An  act  entitled  "A  further  supplement  to  the  act  entitled,  'An 
Act  directing  the  descent  of  intestates,  real  estates  and  distribution 
of  their  personal  estates,  and  for  other  purposes  therein  men- 
tioned,' "  approved  April  i,  1823,  P.  L.  286,  absolutely. 

Section  i  of  an  act  entitled  "An  Act  to  enable  executors, 
administrators,  guardians,  and  other  trustees,  to  invest  their 
trust  moneys,"  approved  February  18,  1824,  P.  L.  25,  in  so  far  as 
it  relates  to  fiduciaries  subject  to  the  jurisdiction  of  the  orphans' 
court. 


FIDUCIARIES  ACT— SECTION  63  475 

An  act  entitled  "An  Act  to  prevent  the  failure  of  trusts," 
approved  March  22,  1825,  P.  L,.  107,  in  so  far  as  it  relates  to 
testamentary  trustees. 

Section  i  of  an  act  entitled  "A  supplement  to  the  intestate 
law  of  this  commonwealth,"  approved  April  8,  1826,  P.  L.  255, 
absolutely. 

Section  3  of  an  act  entitled  "An  Act  for  the  relief  of  the 
poor,"  approved  April  10,  1828,  P.  L.  285,  absolutely. 

Sections  i  and  2  of  an  act  entitled  "An  Act  to  prevent  the 
failure  of  trusts,  to  provide  for  the  settlement  of  accounts  of 
trustees  and  for  other  purposes,"  approved  April  14,  1828  P.  L. 
453,  in  so  far  as  they  relate  to  testamentary  trustees. 

Sections  i  and  2  of  an  act  entitled  "An  Act  concerning  exec- 
utors," approved  April  3,  1829,  P.  L.  122,  absolutely. 

An  act  entitled  "A  further  supplement  to  the  act  directing  the 
descent  of  intestates'  real  estates  and  distribution  of  their  personal 
estates,  and  for  other  purposes  therein  mentioned,  passed  the 
nineteenth  day  of  April,  seventeen  hundred  and  ninety-four," 
approved  April  7,  1830,  P.  L/.  347,  absolutely. 

Sections  6,  14,  15,  16,  18  to  24  inclusive,  26  to  30  inclusive, 
43  and  44  of  an  act  entitled  "An  Act  relating  to  registers  and 
registers'  courts,"  approved  March  15,  1832,  P.  L.  135,  absolutely. 

Sections  5  to  34  inclusive,  47,  53  and  54  of  an  act  entitled  "An 
Act  relating  to  orphans'  courts,"  approved  March  29,  1832,  P.  L,. 
190,  absolutely. 

Sections  i  and  41  inclusive,  43,  45  to  61  inclusive,  66,  67  and  68 
of  an  act  entitled  "An  Act  relating  to  executors  and  administra- 
tors," approved  February  24,  1834,  P.  L.  73,  absolutely. 

Sections  i  and  3  of  an  act  entitled  "Supplement  to  the  act 
passed  the  twenty-ninth  day  of  March,  Anno  Domini,  one 
thousand  eight  hundred  and  thirty-two,  entitled  'An  Act  relating 
to  orphans'  courts,'  "  approved  April  14,  1835,  P.  L.  275,  abso- 
lutely. 

Sections  12  and  13  of  an  act  entitled  "A  supplement  to  the  act 
entitled  'An  Act  to  establish  the  district  court  for  the  city  and 
county  of  Philadelphia/  passed  the  twenty-eight  day  of  March, 
one  thousand  eight  hundred  and  thirty-five,"  approved  March  u, 
1836,  P.  L.  76,  in  so  far  as  they  relate  to  testamentary  trustees. 

Sections  15  to  21  inclusive  and  23  to  26  inclusive  of  an  act 
entitled  "An  Act  relating  to  assignees  for  the  benefit  of  creditors, 
and  other  trustees,"  approved  June  14,  1836,  P.  L.  628,  in  so  far 
as  they  relate  to  testamentary  trustees. 


476  FIDUCIARIES  ACT— SECTION  63 

Section  3  of  an  act  entitled  "An  Act  supplementary  to  the 
various  acts  relating  to  orphans'  and  registers  courts,  and  ex- 
ecutors and  administrators,  and  the  act  relating  to  the  measure- 
ment of  grain,  salt,  and  coal,"  approved  June  16,  1836,  P.  L.  682, 
absolutely. 

Section  2  of  an  act  entitled  "An  Act  to  empower  the  court  of 
common  pleas  for  the  city  and  county  of  Philadelphia  to  appoint 
assignees  or  trustees  in  the  place  of  the  deceased  assignees  or 
trustees  of  John  Vaughan,  and  for  other  purposes,"  approved 
March  17,  1838,  P.  L,.  80,  in  so  far  as  it  relates  to  the  orphans' 
court. 

Sections  i  and  2  of  an  act  entitled  "A  further  supplement  to 
an  act,  entitled  'An  Act  relating  to  orphans'  courts,'  passed  the 
twenty-ninth  day  of  March,  one  thousand  eight  hundred  and 
thirty-two,  and  the  supplement  thereto,  passed  the  fourteenth  of 
April,  one  thousand  eight  hundred  and  thirty-five,  and  for  other 
purposes,"  approved  April  13,  1840,  P.  L.  319,  absolutely. 

Section  I  of  an  act  entitled  "An  Act  relating  to  orphans'  courts, 
and  for  other  purposes,"  approved  October  13,  1840,  P.  L.  (1841) 
i,  absolutely. 

Section  5  of  an  act  entitled  "A  further  supplement  to  the  act 
entitled  'An  Act  to  establish  the  district  court  of  the  city  and 
county  of  Philadelphia,'  passed  the  twenty-eight  day  of  March, 
one  thousand  eight  hundred  and  thirty-five,  and  for  other  pur- 
poses," approved  March  12,  1842,  P.  L.  66,  absolutely. 

Section  52  of  an  act  entitled  "An  Act  concerning  the  trust  es- 
tate of  Hugh  Roberts,  deceased,  and  for  other  purposes,"  approved 
July  16,  1842,  P.  L.  374,  absolutely. 

Section  22  of  an  act  entitled  "An  Act  to  authorize  the  governor 
to  incorporate  the  Delaware  Canal  Company,  and  for  other  pur- 
poses," approved  April  13,  1843,  P.  L.  237,  absolutely. 

Section  9  of  an  act  entitled  "An  Act  in  regard  to  certain  entries 
in  ledgers  in  the  city  of  Pittsburgh,  and  relating  to  the  publishing 
of  sheriffs'  sales,  and  for  other  purposes,"  approved  April  22, 
1846,  P.  L.  476,  absolutely. 

Section  I  of  an  act  entitled  "An  Act  relative  to  the  appointment 
of  trustees  by  orphans'  court,  and  for  other  purposes,"  approved 
April  22,  1846,  P.  L,.  483,  absolutely. 

An  act  entitled  "An  Act  to  enable  the  executors  and  adminis- 
trators of  decedents  to  perfect  title  to  real  estate  in  certain  cases," 
approved  February  8,  1848,  P.  L.  27,  absolutely. 


FIDUCIARIES  ACT— SECTION  63  477 

Section  9  of  an  act  entitled  "A  supplement  to  an  act,  entitled 
'An  Act  relative  to  the  LeRaysville  Phalanx/  passed  March,  Anno 
Domini  one  thousand  eight  hundred  and  forty-seven,  and  relative 
to  obligors  and  obligees,  to  secure  the  right  of  married  women,  in 
relation  to  defalcation,  and  to  extend  the  boundaries  of  the  bor- 
ough of  Ligonier,"  approved  April  n,  1848,  P.  L.  536,  in  so  far  as 
it  relates  to  letters  of  administration. 

An  act  entitled  "An  Act  relative  to  sales  made  by  persons  acting 
in  a  fiduciary  capacity,"  approved  March  14,  1849,  P-  L.  164,  in 
so  far  as  it  relates  to  powers  to  sell  or  let  real  estate  on  ground 
rent,  contained  in  any  will  or  testamentary  writing. 

Section  2  of  an  act  entitled  "A  further  supplement  to  an  act, 
entitled  'An  act  authorizing  the  Governor  to  incorporate  the  Mill 
Creek  and  Mine  Hill  navigation  and  railroad  company,'  passed  the 
seventh  day  of  February,  Anno  Domini,  one  thousand  eight 
hundred  and  twenty-eight ;  and  in  relation  to  orphans'  court 
deeds,"  approved  April  9,  1849,  P.  L.  511,  absolutely. 

Sections  5,  13  and  16  of  an  act  entitled  "A  supplement  to  an 
act  relative  to  the  venders  of  mineral  waters ;  and  an  act  relative 
to  the  Washington  Coal  Company;  to  sheriffs'  sales  of  real  es- 
tate ;  to  the  substitution  of  executors  and  trustees  when  plaintiffs ; 
to  partition  in  the  courts  of  common  pleas,  and  for  other  pur- 
poses," approved  April  9,  1849,  P-  L.  524,  absolutely. 

Section  2  of  an  act  entitled  "An  Act  relative  to  sheriffs'  sales, 
and  to  the  appointment  of  trustees  in  the  county  of  Philadelphia, 
and  to  the  appointment  of  trustees ;  incorporating  the  First  Pres- 
byterian Church  of  Pottstown,  Montgomery  County,  and  changing 
the  venue  of  a  certain  suit  in  Huntingdon  County,"  approved 
April  10,  1849,  P.  L.  597,  absolutely. 

Section  i  of  an  act  entitled  "An  Act  relating  to  conveyances  by 
trustees,"  approved  March  14,  1850,  P.  L.  195,  in  so  far  as  it 
relates  to  fiduciaries  subject  to  the  jurisdiction  of  the  orphans' 
court. 

Sections  I,  5  and  44  of  an  act  entitled  "An  Act  relating  to  the 
bail  of  executrixes ;  to  partition  in  the  orphans'  court  and  com- 
mon pleas ;  to  colored  convicts  in  Philadelphia ;  to  the  limitation 
of  actions  against  corporations ;  to  actions  enforcing  the  payment 
of  ground  rent ;  to  trustees  of  married  women ;  to  appeals  from 
awards  of  arbitrators  by  corporations ;  to  hawkers  and  peddlers  in 
the  counties  of  Butler  and  Union;  to  the  payment  of  costs  in 
actions  by  informers  in  certain  cases;  to  taxing  lands  situate  in 


478  FIDUCIARIES  ACT— SECTION  63 

different  townships ;  and  in  relation  to  fees  of  county  treasurers 
of  Lycoming,  Clinton  and  Schuylkill;  to  provide  for  recording 
the  accounts  of  executors,  administrators,  guardians  and  auditors' 
reports ;  and  to  amend  and  alter  existing  laws  relative  to  the 
administration  of  justice  in  this  commonwealth,"  became  a.  law 
April  25,  1850,  by  reason  of  the  Governor's  failure  to  return  it 
within  ten  days,  P.  L.  569,  absolutely. 

Sections  22  and  23  of  an  act  entitled  "An  Act  to  incorporate 
the  Wyoming  County  Mutual  Insurance  Company;  relating  to 
Library  Street,  in  the  city  of  Philadelphia ;  giving  jurisdiction  to 
the  court  of  common  pleas  in  Tioga  County,  in  a  certain  divorce 
case ;  and  relating  to  paving  in  front  of  the  prison  in  the  county 
of  Philadelphia,"  approved  April  26,  1850,  P.  L.  577,  except  in  so 
far  as  they  relate  to  recognizances  in  partition,  and  section  25  of 
said  act,  absolutely. 

Section  8  of  an  act  entitled  "An  act  relative  to  the  Columbia 
Lyceum  and  Mechanics'  Institute;  to  the  act  relating  to  in- 
spections ;  to  the  claims  of  David  King,  of  Venango  county ;  and 
of  the  heirs  of  John  Bennet,  of  Lycoming  county,  deceased;  to 
authorize  James  T.  Crabb  to  sell  certain  gun-powder  in  the 
County  of  Philadelphia ;  relative  to  the  estate  of  Francis  Harley, 
senior,  deceased ;  and  a  supplement  to  an  act  relating  to  registers 
and  registers'  courts,  passed  March  fifteenth,  one  thousand  eight 
hundred  and  thirty-two,"  approved  May  15,  1850,  P.  L.  764, 
absolutely. 

Section  6  of  an  act  entitled  "An  Act  supplementary  to  an  act 
passed  the  twenty-ninth  day  of  March,  one  thousand  eight  hundred 
and  thirty-two,  entitled  'An  act  relating  to  orphans'  courts,'  and 
relating  to  contracts  of  decedents  and  escheats  in  certain  cases, 
and  relative  to  the  District  Court  of  the  City  and  County  of  Phila- 
delphia, and  to  Registers  of  Wills,"  approved  April  3,  1851,  P.  L. 
305,  absolutely. 

Section  5  of  an  act  entitled  "An  Act  relating  to  the  commence- 
ment of  actions  to  judgments  and  decrees  for  the  payment  of 
money  to  the  widows  and  children  of  decedents,  to  partitions  in 
the  common  pleas,  relative  to  penalties  on  telegraph  operators,  to 
pleadings  in  certain  actions  of  debt,  to  actions  of  ejectments,  to 
the  protection  of  fences,  to  partnerships,  to  limitations  of  writs  of 
entry  in  manors,  lands,  and  tenements,  to  the  exemption  laws,  to 
reports  of  the  supreme  court,  to  appeals  relating  to  wards, 
boroughs,  and  township  officers,  to  the  acknowledgments  of  deeds 


FIDUCIARIES  ACT— SivCTioN  63  479 

and  sequestration  of  life  estates,"  approved  April  14,  1851,  P.  L. 
612,  absolutely. 

Section  18  of  an  act  entitled  "An  Act  to  incorporate  a  company 
to  erect  a  bridge  over  the  river  Schuylkill  at  Spring  Mill,  in  Mont- 
gomery County,  relative  to  the  nineteenth  section  of  'An  Act 
regulating  certain  election  districts,  &c.'  approved  March  twenty- 
ninth,  eighteen  hundred  and  fifty-one,  to  school  directors  in  Phila- 
delphia county,  to  actions  for  damages  sustained  by  injuries  done 
to  the  person  by  negligence  or  default,  relative  to  the  accounts  of 
John  Humes,  deceased,  to  authorize  the  trustees  of  the  Seventh 
Presbyterian  Church  of  Philadelphia  to  convey  certain  real  estate, 
to  security  for  moneys  loaned  by  wives  to  husbands,  to  unpaid 
school  taxes  in  Bradford  County,  and  relative  to  service  of  process 
on  agents  of  joint  stock  companies,"  approved  April  15,  1851,  P. 
L.  669,  absolutely. 

An  act  entitled  "A  supplement  to  an  act  relating  to  executors 
and  administrators,  passed  February  twenty-fourth,  one  thousand 
eight  hundred  and  thirty-four,"  approved  February  2,  1853,  P.  L. 
31,  absolutely. 

An  act  entitled  "An  Act  to  give  power  to  the  orphans'  court  to 
grant  relief  in  certain  cases,"  approved  February  23,  1853,  P.  L. 
98,  absolutely. 

Section  i  of  an  act  entitled  "An  Act  relative  to  bringing  suits 
by  creditors  and  others  against  executors,  administrators,  assignees 
and  other  trustees  in  certain  cases,  and  serving  notices  and  for 
satisfaction  of  mortgages,  and  opening  judgments  in  certain 
cases,"  approved  March  27,  1854,  P.  L.  214,  in  so  far  as  it  relates 
to  fiduciaries  subject  to  the  jurisdiction  of  the  orphans'  court. 

Section  2  of  an  act  entitled  "A  supplement  to  an  act,  entitled 
'An  Act  relating  to  the  sale  and  conveyance  of  real  estate,' "  ap- 
proved April  13,  1854,  P.  L.  368,  in  so  far  as  it  relates  to  fiduciar- 
ies subject  to  the  jurisdiction  of  the  orphans'  court. 

An  act  entitled  "A  supplement  to  the  act  relating  to  executors 
and  administrators,"  approved  May  5,  1854,  P.  L.  570,  absolutely. 

Sections  2  and  5  inclusive  of  an  act  entitled  "A  supplement  to 
an  act  relating  to  assignees  for  the  benefit  of  creditors  and  other 
trustees,"  approved  May  3,  1855,  P.  L.  415,  in  so  far  as  they 
relate  to  testamentary  trustees. 

Section  4  of  an  act  entitled  "An  Act  relating  to  the  rights  of 
property  of  husband  and  wife,"  approved  April  n,  1856,  P.  L. 
315,  absolutely. 


480  FIDUCIARIES  ACT— SECTION  63 

An  act  entitled  "An  Act  respecting  the  estates  of  non-resident 
wards,"  approved  April  21,  1856,  P.  L.  495,  absolutely. 

Section  8  of  an  act  entitled  "An  Act  for  the  greater  certainty 
of  title  and  more  secure  enjoyments  of  real  estate,"  approved 
April  22,  1856,  P.  L.  532,  absolutely. 

An  act  entitled  "An  Act  relating  to  testamentary  trustees,"  ap- 
proved March  13,  1859,  P.  L,.  611,  absolutely. 

Section  i  of  an  act  entitled  "An  Act  relative  to  orphans'  courts," 
approved  March  22,  1859,  P.  L.  207,  absolutely. 

An  act  entitled  "A  supplement  to  the  act,  entitled  'An  Act  re- 
lating to  executors  and  administrators/  approved  the  twenty- 
fourth  day  of  February,  Anno  Domini,  one  thousand  eight  hun- 
dred and  thirty-four,"  approved  April  6,  1859,  P.  L.  384,  abso- 
lutely. 

An  act  entitled  "An  Act  to  extend  the  jurisdiction  of  the 
orphans'  courts  in  case  of  testamentary  trusts,"  approved  April 
7,  1859,  P.  L.  406,  absolutely. 

An  act  entitled  "An  Act  relative  to  the  exemption  of  three 
hundred  dollars,  and  to  the  widows  and  children  of  decedents," 
approved  April  8,  1859,  P.  L.  425,  in  so  far  as  it  relates  to  the 
exemption  allowed  to  the  widow  or  children  of  any  decedent. 

An  act  entitled  "An  Act  relating  to  executors,  administrators 
and  guardians,"  approved  April  13,  1859,  P-  L.  604,  absolutely. 

An  act  entitled  "An  Act  relative  to  the  lien  of  legacies,"  ap- 
proved May  i,  1861,  P.  L.  420,  absolutely. 

An  act  entitled  "An  Act  authorizing  surviving  executors  and 
administrators  to  execute  and  deliver  deeds  of  conveyance  in 
certain  cases,"  approved  May  i,  1861,  P.  L.  431,  in  so  far  as  it 
relates  to  fiduciaries  subject  to  the  jurisdiction  of  the  orphans' 
court. 

An  act  entitled  "An  Act  relating  to  executors  and  other 
trustees,"  approved  May  i,  1861,  P.  L.  680,  in  so  far  as  it  relates 
to  fiduciaries  subject  to  the  jurisdiction  of  the  orphans'  court. 

An  act  entitled  "An  Act  regulating  certain  charges  of  executors 
and  trustees,"  approved  March  17,  1864,  P.  L.  53,  absolutely. 

An  act  entitled  "An  Act  extending  the  provisions  of  the  second 
section  of  the  act  of  April  tenth,  one  thousand  eight  hundred  and 
forty-nine,  entitled  'An  Act  relative  to  sheriffs'  sales,  and  the  ap- 
pointment of  trustees,  in  the  county  of  Philadelphia,  et  cetera,' 
to  the  several  counties  of  this  commonwealth,"  approved  April 
23,  1864,  P.  L.  550,  absolutely. 


FIDUCIARIES  ACT— SECTION  63  481 

An  act  entitled  "An  Act  relating  to  the  appointment  of  guard- 
ians/' approved  August  25,  1864,  P.  L.  1029,  absolutely. 

An  act  entitled  "An  Act  providing  additional  remedies  against 
trustees  of  a  trust  created  for  life,  or  during  marriage,  and  pro- 
viding a  remedy  for  the  protection  of  their  sureties,"  approved 
March  27,  1865,  P.  L.  44,  in  so  far  as  it  relates  to  testamentary 
trustees. 

An  act  entitled  "An  Act  supplementary  to  the  act  to  set  apart, 
for  the  use  of  the  widow,  or  children,  of  a  decedent,  three  hun- 
dred dollars  of  the  estate  of  said  decedent,  approved  April  four- 
teenth, one  thousand  eight  hundred  and  fifty-one,"  approved 
November  27,  1865,  P.  L.  (1866)  1227,  absolutely. 

An  act  entitled  "Supplement  to  an  act,  entitled  'An  Act  provid- 
ing additional  remedies  against  trustees  of  a  trust,  created  for 
life,  or  during  marriage,  and  providing  a  remedy  for  the  pro- 
tection of  their  sureties,'  approved  March  twenty-seventh,  one 
thousand  eight  hundred  and  sixty-five,"  approved  April  17,  1866, 
P.  L.  in,  in  so  far  as  it  relates  to  trustees  subject  to  the  juris- 
diction of  the  orphans'  court. 

An  act  entitled  "An  Act  enlarging  the  powers  of  the  orphans' 
court,  so  as  to  discharge  liens  on  real  estate,"  approved  May  17, 
1866,  P.  L.  1096,  absolutely. 

An  act  entitled  "A  supplement  to  the  act  of  the  fifteenth  of 
March,  Anno  Domini  one  thousand  eight  hundred  and  thirty-two, 
entitled  'An  Act  relating  to  registers  and  registers'  courts,'  "  ap- 
proved April  15,  1867,  P.  L.  86,  absolutely. 

An  act  entitled  "An  Act  to  authorize  the  court  of  common  pleas 
and  orphans'  court  of  the  city  of  Philadelphia  to  appoint  and  re- 
move trustees,"  approved  April  9,  1868,  P.  L.  785,  in  so  far  as  it 
relates  to  trustees  subject  to  the  jurisdiction  of  the  orphans'  court. 

An  act  entitled  "An  Act  relating  to  orphans'  courts,  conferring 
upon  said  courts  power  to  define  boundaries  in  certain  cases  of 
devises  and  conveyances  for  life  or  term  of  years,"  approved 
April  14,  1868,  P.  L.  97,  absolutely. 

Section  I  of  an  act  entitled  "An  Act  relating  to  the  appointment 
of  auditors  in  the  courts  of  the  county  of  Montgomery,"  approved 
February  18,  1869,  P.  L.  183,  absolutely. 

An  act  entitled  "An  Act  relative  to  actions  of  trespass  and  for 
mesne  profits,"  approved  April  12,  1869,  P.  L.  27,  absolutely. 

An  act  entitled  "An  Act  for  the  protection  of  contingent  inter- 
ests," approved  April  17,  1869,  P.  L.  70,  absolutely. 
31 


482  FIDUCIARIES  ACT— SECTION  63 

An  act  entitled  "An  Act  relating  to  the  appraisement  of  real 
estate  devised  by  any  last  will  and  testament  within  this  common- 
wealth," approved  April  17,  1869,  P.  L.  72,  absolutely. 

An  act  entitled  "A  supplement  to  an  act  relating  to  assignees 
for  the  benefit  of  creditors  and  other  trustees,  approved  •  June 
fourteenth,  one  thousand  eight  hundred  and  thirty-six,"  approved 
May  17,  1871,  P.  L.  269,  in  so  far  as  it  relates  to  fiduciaries  ap- 
pointed by  the  orphans'  court  or  by  virtue  of  any  last  will  or 
testament. 

An  act  entitled  "A  further  supplement  to  an  act  entitled,  'An 
Act  relating  to  executors  and  administrators,  approved  twenty- 
fourth  of  February,  one  thousand  eight  hundred  and  thirty-four," 
approved  May  17,  1871,  P.  L,.  269,  absolutely. 

An  act  entitled  "A  further  supplement  to  an  act,  entitled  'A 
further  supplement  to  an  act  relating  to  orphans'  courts,'  passed 
the  twenty-ninth  day  of  March,  one  thousand  eight  hundred  and 
thirty-two,  and  the  supplement,  passed  fourteenth  of  April,  one 
thousand  eight  hundred  and  thirty-five,  arid  the  further  supple- 
ment, passed  fourteenth  of  April,  one  thousand  eight  hundred 
and  forty,"  approved  May  25,  1871,  P.  L.  279,  absolutely. 

An  act  entitled  "An  Act  providing  for  the  entry  of  certain  pro- 
ceedings on  the  judgment  indexes  of  the  several  courts  of  this 
commonwealth,"  approved  June  15,  1871,  P.  L.  387,  in  so  far  as 
it  relates  to  proceedings  to  revive  and  continue  the  lien  of  debts 
against  a  decedent's  real  estate. 

An  act  entitled  "An  Act  relating  to  foreign  executors,  adminis- 
trators, guardians  and  representatives  of  decedents  and  wards," 
approved  April  8,  1872,  P.  L.  44,  absolutely. 

An  act  entitled  "An  Act  to  provide  for  the  recording  of  deaths 
of  testators  and  intestates  in  the  office  of  register  of  wills,"  ap- 
proved May  15,  1874,  P.  L.  194,  absolutely. 

An  act  entitled  "An  Act  relative  to  the  transfer  of  the  loans  of 
this  commonwealth,  and  of  the  city  of  Philadelphia,  and  to  amend 
the  provisions  of  the  twenty-second  section  o£  an  act,  entitled 
'An  Act  to  authorize  the  Governor  to  incorporate  the  Delaware 
Canal  Company,  and  for  other  purposes,'  approved  the  thirteenth 
day  of  April,  eighteen  hundred  and  forty-three,  and  extending  the 
same  to  the  holders  of  any  loans  of  this  commonwealth,  or  of  the 
city  of  Philadelphia,  domiciled  or  resident  out  of  this  common- 
wealth, who  shall  have  heretofore  died  or  hearaf ter  die,"  approved 
May  15,  1874,  P.  L.  195,  absolutely. 


FIDUCIARIES  ACT— SECTION  63  483 

The  proviso  to  Section  6  of  "An  Act  relating  to  the  organiza- 
tion and  jurisdiction  of  orphans'  courts,  and  to  establish  a  sepa- 
rate orphans'  court  in  and  for  counties  having  more  than  one 
hundred  and  fifty  thousand  inhabitants,  and  to  provide  for  the 
election  of  judges  thereof,"  approved  May  19,  1874,  P.  L.  206, 
absolutely. 

An  Act  entitled  "An  Act  to  validate  sales  and  conveyances, 
under  the  decrees  of  courts  of  this  commonwealth,  by  persons 
irregularly  or  improperly  appointed  or  defectively  qualified," 
approved  April  28,  1876,  P.  L.  50,  in  so  far  as  it  relates  to  pro- 
ceedings in  the  orphans'  court. 

An  act  entitled  "A  further  supplement  to  an  act,  entitled  'An 
Act  relating  to  orphans'  court,'  approved  the  twenty-ninth  day  of 
March,  Anno  Domini  one  thousand  eight  hundred  and  thirty-two, 
designed  to  extend  the  fourteenth  section  of  said  act,  so  as  to 
authorize  investments  I  y  executors,  trustees  and  other  persons 
holding  property  in  a  fiduciary  capacity  in  bonds  or  certificates 
of  debt  created  by  any  of  the  counties,  cities  or  municipal  cor- 
porations of  this  commonwealth,"  approved  May  8,  1876,  P.  L. 
133,  absolutely. 

An  act  entitled  "An  Act  relating  to  the  execution  of  trusts  by 
corporations,"  approved  February  16,  1877,  P.  L.  3,  in  so  far  as  it 
relates  to  fiduciaries  subject  to  the  jurisdiction  of  the  orphans' 
court. 

Sections  I  and  2  of  an  act  entitled  "An  Act  to  provide  for  and 
to  validate  the  execution  and  delivery  of  deeds  and  conveyances  of 
real  estate,  in  cases  in  which  administrators,  executors,  guardians 
and  trustees,  may  die  or  have  died,  between  the  time  of  sale  and 
the  time  appointed  for  the  payment  of  purchase  money  and  de- 
livery of  the  conveyance,  and  also  in  cases  in  which  the  adminis- 
trator, executor,  guardian  or  trustee  may  have  received  authority 
from  the  proper  court  to  purchase  real  estate  sold  by  him,  either 
under  the  provisions  of  any  last  will  and  testament,  or  by  the 
authority  or  under  the  direction  of  any  court  having  jurisdiction 
to  make  a  decree,  directing  such  real  estate  to  be  sold,"  approved 
May  22,  1878,  P.  L.  83,  in  so  far  as  they  relate  to  the  orphans' 
court. 

Sections  i,  2  and  3  of  an  act  entitled  "An  Act  to  provide  for  the 
appointment  of  trustees  durante  absentia,  and  defining  the  powers 
and  duties  of  the  same,"  approved  April  u,  1879,  P.  L.  21, 
absolutely. 


484  FIDUCIARIES  ACT— SECTION  63 

An  act  entitled  "An  Act  to  regulate  the  compensation  of  audi- 
tors and  commissioners,"  approved  June  4,  1879,  P.  L.  84,  in  so 
far  as  it  relates  to  auditors  and  commissioners  appointed  by  the 
orphans'  court. 

An  act  entitled  "A  supplement  to  extend  the  provisions  of  an 
act,  entitled  'An  Act  providing  additional  remedies  against  trus- 
tees of  a  trust  created  for  life,  or  during  marriage,  and  providing 
a  remedy  for  the  protection  of  their  sureties/  approved  the  twenty- 
seventh  day  of  March  Anno  Domini,  one  thousand  eight  hundred 
and  sixty-five,  to  the  orphans'  courts  of  the  respective  counties  of 
this  commonwealth,"  approved  May  10,  1881,  P.  L.  14,  in  so  far 
as  it  relates  to  trustees  subject  to  the  jurisdiction  of  the  orphans' 
court. 

An  act  entitled  "A  supplement  to  an  act,  approved  April  thirteen, 
one  thousand  eight  hundred  and  fifty-nine,  entitled  'An  Act  re- 
lating to  executors,  administrators  and  guardians,'  "  approved 
June  10,  1881,  P.  L.  106,  absolutely. 

An  act  entitled  "An  Act  to  confer  power  on  the  several  orphans' 
courts  having  jurisdiction  of  the  accounts  of  executors  and  ad- 
ministrators to  order  and  direct  a  sale  for  the  payment  of  the 
debts  of  such  decedent  of  any  lands  lying  partly  in  two  or  more 
counties,"  approved  June  4,  1883,  P.  L.  65,  absolutely. 

An  act  entitled  "An  Act  providing  the  manner  in  which  widows' 
and  children's  exemption  in  decedents'  estates  shall  and  may  be 
set  aside  to  them  in  certain  cases,"  approved  June  4,  1883,  P.  L. 
74,  absolutely. 

An  act  entitled  "An  Act  to  permit  foreign  executors  or  ad- 
ministrators to  issue  scire  facias  to  preserve  and  continue  the  lien 
or  liens  of  judgments  in  favor  of  decedents  within  this  common- 
wealth, and  before  letters  of  administration  have  been  taken  out 
within  this  state,"  approved  June  27,  1883,  P.  L.  163,  absolutely. 

An  act  entitled  "An  Act  relating  to  the  grant  of  letters  of  ad- 
ministration upon  the  estates  of  persons,  presumed  to  be  dead,  by 
reason  of  long  absence  from  their  former  domicile,"  approved 
June  24,  1885,  P.  L.  155,  absolutely. 

An  act  entitled  "An  Act  limiting  the  time  within  which  action 
may  be  brought  upon  refunding  bonds  given  upon  the  distribution 
or  partition  of  estates  of  decedents,"  approved  June  30,  1885,  P. 
L.  203,  absolutely. 

An  act  entitled  "An.  Act  authorizing  executors  or  trustees  to 
unite  with  others  in  the  organization  of  corporations,"  approved 
April  22,  1889,  P.  L.  42,  absolutely. 


FIDUCIARIES  ACT— SECTION  63  485 

An  act  entitled  "An  Act  to  authorize  courts,  having  cognizance 
of  trusts  created  by  deed  or  will,  to  direct  trust  funds  to  be  placed 
in  the  custody  of  trustees  appointed  by  the  courts  of  another  state 
or  territory  of  the  United  States,  in  cases  where  the  person  or 
persons  beneficially  interested  in  such  trust  have  removed  to  such 
other  state  or  territory  of  the  United  States,"  approved  May  8, 
1889,  P.  L.  123,  in  so  far  as  it  relates  to  trusts  created  by  will. 

An  act  entitled  "An  Act  relating  to  orphans'  court  sales,"  ap- 
proved May  9,  1889,  P.  L.  182,  absolutely. 

An  act  entitled  "An  Act  amending  an  act,  entitled  'An  Act 
respecting  the  estate  of  non-resident  wards,'  approved  the  twenty- 
first  day  of  April,  Anno  Domini  one  thousand  eight  hundred  and 
fifty-six,  extending  the  provisions  thereof  so  that  the  same  may 
apply  to  trustees  and  cestui  que  trusts,"  approved  May  13,  1889, 
P.  L.  190,  absolutely. 

Section  2  of  an  act  entitled  "An  Act  relating  to  judicial  sales 
and  the  preservation  of  the  lien  of  mortgages,"  approved  May  19, 
1893,  P.  L.  no,  absolutely. 

An  act  entitled  "An  Act  to  enable  the  surety  of  any  trustee, 
committee,  guardian,  assignee,  receiver,  administrator,  executor, 
or  other  trustee,  or  any  person  interested  in  the  trust,  to  require 
the  filing  of  statements  exhibiting  the  manner  of  the  investment 
of  the  trust  funds,  and  providing  for  the  removal  of  such  trustee, 
committee,  guardian,  assignee,  receiver,  administrator,  executor, 
or  other  trustee,  by  the  court,"  approved  June  3,  1893,  P.  L.  273, 
in  so  far  as  it  relates  to  fiduciaries  subject  to  the  jurisdiction  of 
the  orphans'  court. 

An  act  entitled  "An  Act  regulating  the  satisfaction,  extinguish- 
ment or  discharge  of  dowers,  legacies  or  other  charges  upon  land, 
by  judicial  decree  where  the  legal  presumption  of  payment  of  the 
same  exists  from  lapse  of  time,  or  where  payment  of  the  same  has 
been  made  in  full  and  no  satisfaction,  extinguishment,  release 
thereof  appears  of  record,"  approved  June  8,  1893,  P.  L.  356, 
absolutely. 

An  act  entitled  "An  Act  to  limit  the  duration  of  the  lien  of  the 
debts  of  decedents  other  than  those  of  record  on  their  real  estate," 
approved  June  8,  1893,  P.  L.  392,  absolutely. 

An  act  entitled  "An  Act  providing  for  the  release  and  discharge 
of  encumbrances  or  charges  on  land  in  all  cases  in  which  the 
period  of  twenty-one  years  has  elapsed  after  the  principal  of  the 
encumbrance  or  charge  has  become  due  and  payable,  and  no  pay- 


486  FIDUCIARIES  ACT— SECTION  63 

merit  has  been  made  within  such  period  of  twenty-one  years  on 
account  of  such  encumbrance  or  charge  by  the  owner  or  owners 
of  the  land  sought  to  be  released  and  discharged  and  no  sufficient 
release  is  of  record  in  the  county,  and  regulating  proceedings  for 
such  release  and  discharge,"  approved  May  8,  1895,  P.  L.  44,  in 
so  far  as  it  relates  to  the  orphans'  court. 

An  act  entitled  "A  supplement  to  an  act,  entitled  'An  Act 
relating  to  executors  and  administrators,'  approved  February 
twenty-fourth,  one  thousand  eight  hundred  and  thirty-four,  re- 
lating to  the  lien  of  judgments  against  decedents,"  approved  June 
18,  1895,  P.  L.  197,  absolutely. 

Section  I  of  an  act  entitled  "An  Act  providing  that  the  right  of 
action  for  injury  wrongfully  done  to  the  person  shall  survive 
against  the  personal  representative  of  the  wrong-doer,  and  limit- 
ing the  time  within  which  suit  for  such  injury  must  be  brought," 
approved  June  24,  1895,  P.  L.  236,  absolutely. 

An  act  entitled  "An  Act  to  allow  receivers,  assignees,  guardians, 
committees,  trustees,  executors  and  administrators  to  include  in 
the  lawful  expenses  of  executing  their  trusts  such  reasonable  sum 
paid  a  company,  authorized  under  the  laws  of  this  state  so  to  do, 
for  becoming  their  surety  as  may  be  by  court  allowed,  not  exceed- 
ing one  per  centum  per  annum  on  the  amount  of  such  bonds,"  ap- 
proved June  24,  1895,  P.  L.  248,  in  so  far  as  it  relates  to  fiducia- 
ries subject  to  the  jurisdiction  of  the  orphans'  court. 

An  act  entitled  "An  Act  to  authorize  executors  and  trustees, 
non-residents  of  the  commonwealth,  to  convey  real  estate,"  ap- 
proved June  23,  1897,  P.  L.  200,  absolutely. 

An  act  entitled  "An  Act  authorizing  the  payment  into  the 
orphans'  court  of  the  money  due  on  dowers,  legacies  or  other 
charge  upon  land  where  the  person  or  persons  to  whom  the  dower, 
legacy  or  other  charge  upon  land  is  due  and  payable  cannot  be 
found,  and  providing  for  the  satisfaction,  extinguishment  or  dis- 
charge thereof,  and  to  ascertain  the  amount  thereof,"  approved 
July  14,  1897,  P.  L.  269,  absolutely. 

An  act  entitled  "An  Act  enlarging  the  powers  of  the  orphans' 
court,  and  to  provide  a  further  remedy  for  the  collection  of  dower 
interest  due  to  widows,"  approved  April  28,  1899,  P.  L.  120, 
absolutely. 

An  act  entitled  "An  Act  authorizing  the  orphans'  courts  of  the 
commonwealth  to  decide  specific  performance  of  written  contracts, 
and  also  parol  contracts  when  so  far  executed  that  it  would  be 


FIDUCIARIES  ACT— SECTION  63  487 

inequitable  to  rescind,  for  the  sale  of  real  estate,  where  the  ven- 
dor has  died  without  conveying,  and  in  cases  where  the  vendee 
has  died  without  having  paid  the  purchase  money,  and  authorizing 
the  recording  of  the  decrees  in  such  cases  in  the  counties  where 
the  real  estate  lies,"  approved  April  28,  1899,  P.  L.  157  absolutely. 

An  act  entitled  "An  Act  to  allow  an  executor,  administrator, 
guardian,  assignee,  or  trustee  to  institute  an  action  at  law,  or 
other  legal  or  equitable  proceedings,  against  a  co-executor,  ad- 
ministrator, guardian,  assignee  or  trustee,  to  recover  or  enforce 
any  debt  or  obligation  individually  due  the  estate  which  he  repre- 
sents," approved  May  n,  1901,  P.  L,.  174,  in  so  far  as  it  relates  to 
fiduciaries  subject  to  the  jurisdiction  of  the  orphans'  court. 

An  act  entitled  "An  Act  to  confer  on  the  several  orphans'  courts 
having  jurisdiction  of  the  accounts  of  guardians,  power  to  order 
and  direct  a  mortgage  or  a  public  or  private  sale,  for  the  payment 
of  debts  or  for  other  purposes,  of  any  lands  lying  partly  in  two  or 
more  counties,  divided  by  county  lines,"  approved  May  21,  1901, 
P.  L.  272,  absolutely. 

An  act  entitled  "An  Act  to  amend  the  first  section  of  an  act, 
entitled  'An  Act  to  limit  the  duration  of  the  lien  of  the  debts  of 
decedents,  other  than  those  of  record,  on  their  real  estate,'  ap- 
proved the  eight  day  of  June,  Anno  Domini  one  thousand  eight 
hundred  and  ninety-three,  and  to  extend  the  provisions  of  said 
act  so  as  to  limit  the  duration  of  the  lien  upon  real  estate  of  the 
decedents,  other  than  those  secured  by  mortgage  or  by  judgment 
entered  or  revived  by  scire  facias  within  five  years  prior  to  the 
death  of  such  decedent,"  approved  June  14,  1901,  P.  L.  562, 
absolutely. 

Section  I  of  an  act  entitled  "An  Act  authorizing  the  orphans' 
court  to  adjudge  real  estate  to  persons,  to  whom  the  right  to  take 
the  same  at  a  certain  valuation  has  been  given  in  a  will,  and  who 
are  appointed  executors  of  the  same  will ;  providing  for  the  pay- 
ment of  the  purchase  money,  and  confirming  titles  to  real  estate 
heretofore  taken  under  similar  proceedings,"  approved  March  5, 
1903,  P.  L.  10,  absolutely. 

An  act  entitled  "An  Act  providing  for  the  voting  of  shares  of 
stock  in  corporations  in  this  commonwealth,  held  by  executors,  ad- 
ministrators, guardians,  and  trustees,  and  the  manner  of  voting 
the  same,"  approved  March  16,  1905,  P.  L.  42,  in  so  far  as  it  re- 
lates to  fiduciaries  subject  to  the  jurisdiction  of  the  orphans' 
court. 


488  FIDUCIARIES  ACT— SECTION  63 

An  act  entitled  "An  Act  to  amend  the  first  section  of  an  act 
approved  the  eleventh  day  of  April,  Anno  Domini  one  thousand 
eight  hundred  and  seventy-nine,  entitled  'An  Act  to  provide  for 
the  appointment  of  trustees  durante  absentia,  and  defining  the 
powers  and  duties  of  the  same,'  providing  for  the  appointment  of 
a  trustee  of  the  estate  of  any  absentee,  who  has  been  a  resident  of 
this  commonwealth  or  of  any  other  state,  territory  or  foreign 
country,  who  has  left  either  real  or  personal  estate,  or  both,  in 
this  commonwealth,"  approved  March  30,  1905,  P.  L.  77,  abso- 
lutely. 

An  act  entitled  "An  Act  to  regulate  the  transfer  of  funds  from 
executors  and  administrators,  in  this  commonwealth,  to  foreign 
executors  and  administrators,"  approved  March  31,  1905,  P.  L. 
91,  absolutely. 

An  act  entitled  "An  Act  to  extend  the  statute  of  limitations  to 
debts  or  demands  arising  or  falling  due  to  the  estate  of  a  decedent 
after  the  death  of  such  decedent,"  approved  April  6,  1905,  P.  L. 
1 14,  absolutely. 

An  act  entitled  "A  supplement  to  an  act,  entitled  'An  Act  re- 
lating to  the  granting  of  letters  of  administration  upon  the  estates 
of  persons,  presumed  to  be  dead,  by  reason  of  long  absence  from 
their  former  domicile/  approved  June  twenty-fourth,  one  thou- 
sand eight  hundred  and  eighty-five ;  providing  for  the  probate  of  a 
will  of  a  person  whose  death,  by  presumption  has  been  established, 
and  for  attachment  of  such  will  to  letters  of  administration  granted 
in  the  case,"  approved  April  14,  1905,  P.  L.  153,  absolutely. 

An  act  entitled  "An  Act  to  amend  an  act  approved  the  seven- 
teenth day  of  May,  one  thousand  eight  hundred  and  sixty-six, 
entitled  'An  Act  enlarging  the  powers  of  the  orphans'  court,  so  as 
to  discharge  liens  on  real  estate/  so  as  to  include  charges  on  real 
estate  by  the  provisions  of  a  last  will  and  testament,  or  otherwise," 
approved  March  22,  1907,  P.  L.  29,  absolutely. 

An  act  entitled  "An  Act  authorizing  employers  to  pay  to  the 
wife,  children,  brother  or  sister,  father  or  mother,  boarding-house 
keeper,  undertaker,  nurse,  or  physician  wages  due  a  deceased  em- 
ploye," approved  May  23,  1907,  P.  L.  201,  absolutely. 

An  act  entitled  "An  Act  to  allow  receivers,  assignees,  guardians, 
committees,  trustees,  executors,  and  administrators  to  include  in 
the  lawful  expenses  of  executing  their  trust  such  reasonable  sum 
paid  a  company,  authorized  under  the  laws  of  this  state  so  to  do, 
for  guaranteeing  the  payment  of  the  principal  and  interest  of 


FIDUCIARIES  ACT— SECTION  63  489 

mortgages  or  other  securities  in  which  they  are  required  to  invest 
the  funds  of  their  estate,  not  exceeding  one-half  of  one  per  centum 
per  annum  on  the  principal  of  such  mortgage  or  other  securities," 
approved  May  28,  1907,  P.  L.  271,  in  so  far  as  it  relates  to  fiducia- 
ries subject  to  the  jurisdiction  of  the  orphans'  court. 

An  act  entitled  "An  Act  to  provide  for  the  discharge  of  sureties 
upon  bonds  of  trustees,  committees,  guardians,  assignees,  re- 
ceivers, executors,  administrators,  and  other  fiduciaries,"  ap- 
proved June  i,  1907,  P.  L.  384,  in  so  far  as  it  relates  to  fiduciaries 
subject  to  the  jurisdiction  of  the  orphans'  court. 

An  act  entitled  "An  Act  authorizing  the  parties  in  interest,  or 
their  counsel,  to  select  auditors  and  masters  needed  in  judicial 
proceedings;  except  in  divorce  cases,"  approved  April  I,  1909, 
P.  L.  95,  in  so  far  as  it  relates  to  proceedings  in  the  orphans'  court. 

An  act  entitled  "An  Act  to  amend  sections  twenty-nine  and 
thirty  of  an  act,  approved  the  twenty-ninth  day  of  March,  Anno 
Domini  eighteen  hundred  and  thirty-two,  entitled  'An  Act  re- 
lating to  orphans'  courts,'  and  validating  execution  and  attachment 
execution  process  issued  out  of  the  courts  of  common  pleas  of 
this  commonwealth,  upon  transcripts  from  any  orphans'  court  of 
this  commonwealth,  for  balances  due  from,  or  in  the  hands  of, 
any  executor,  administrator,  guardian,  or  other  accountant,  on  the 
settlement  of  their  respective  accounts  in  the  orphans'  court,"  ap- 
proved April  27,  1909,  P.  L.  202,  except  in  so  far  as  it  relates  to 
proceedings  begun  prior  to  its  date. 

An  act  entitled  "An  Act  to  limit  the  duration  upon  real  estate 
of  the  debts  of  decedents,  including  the  expenses  of  the  settlement 
of  the  estate,  and  to  provide  under  what  conditions  the  lien  may 
be  continued,"  approved  May  3,  1909,  P.  L,.  386,  absolutely. 

An  act  entitled  "An  Act  to  provide  for  the  filing,  auditing,  and 
confirmation,  in  certain  cases,  of  accounts  of  trustees  and  of  com- 
mittees of  lunatics  and  of  habitual  drunkards,"  approved  May  3, 
1909,  P.  L.  391,  in  so  far  as  it  relates  to  trustees  subject  to  the 
jurisdiction  of  the  orphans'  court. 

An  act  entitled  "An  Act  providing  that  the  widow  or  children 
of  any  decedent  dying  outside  of  this  commonwealth,  but  whose 
estate  is  settled  in  this  commonwealth,  may  retain  either  real  or 
personal  property  belonging  to  said  estate  to  the  value  of  three 
hundred  dollars,"  approved  May  6,  1909,  P.  L.  459,  absolutely. 

Sections  i,  2  and  3  of  an  act  entitled  "An  Act  relating  to  pri- 
vate sales  of  real  estate,  ordered,  decreed,  or  approved  by  the 


490  FIDUCIARIES  ACT— SECTION  63 

orphans'  courts ;  and  providing  a  method  of  giving  notice  of  such 
sales,  and  validating  such  private  sales  of  real  estate,  heretofore 
made  under  the  authority  of  the  orphans'  courts,  for  the  payment 
of  debts,"  approved  June  9,  1911,  P.  L.  724,  absolutely. 

An  act  entitled  "An  Act  to  amend  section  ten  of  an  act,  ap- 
proved the  twenty-ninth  day  of  March,  Anno  Domini  one- thou- 
sand eight  hundred  and  thirty-two,  entitled  'An  Act  relating  to 
orphans'  courts,'  so  as  to  permit  the  accounts  of  the  guardians  of 
minors'  property  therein  mentioned  and  described  to  be  examined 
and  audited,  and  the  matters  therein  contained  confirmed  by  de- 
cree of  orphans'  court,  with  the  same  force  and  effect  as  the 
partial  accounts  of  executors,  administrators,  and  temporary 
trustees  are  audited,  examined,  allowed,  and  confirmed,"  approved 
June  9,  1911,  P.  L.  744,  absolutely. 

An  act  entitled  "An  Act  to  confer  power  on  the  several  orphans' 
courts  having  jurisdiction  thereof,  when  the  balance  for  distri- 
bution in  an  estate,  after  the  debts  are  paid,  includes  stocks,  bonds, 
and  other  securities,  to  make  distribution  of  the  same  in  kind  to 
parties  entitled  thereto,  to  authorize  subsequent  sales  thereof,  and 
to  validate  such  distributions  heretofore  made,"  approved  June 
10,  1911,  P.  L.  870,  absolutely. 

An  act  entitled  "An  Act  to  provide  that  persons  buying  real 
estate  in  this  commonwealth,  from  executors  or  trustees  named 
in  the  last  will  and  testament  of  any  person  dying  testate,  and  who 
hold  the  same  in  trust  under  the  provisions  thereof,  and  who 
make  sale  of  same  under  the  power  of  sale  in  said  last  will  and 
testament  contained,  shall  take  title  to  said  real  estate  free  and 
discharged  of  any  obligation  to  see  to  the  application  of  the  pur- 
chase money,"  approved  June  10,  1911,  P.  L.  874,  absolutely. 

An  act  entitled  "An  Act  to  amend  an  act,  approved  the  eight 
day  of  April,  Anno  Domini  one  thousand  eight  hundred  and 
seventy-two,  entitled  'An  Act  relating  to  foreign  executors,  ad- 
ministrators, guardians,  and  representatives  of  decedents  and 
wards,'  by  extending  the  provisions  thereof  to  the  assignment  and 
satisfaction  of  record  of  mortgage  debts  and  indentures  of  mort- 
gage and  to  the  receipt  of  the  interest  thereon,"  approved  June 
13,  1911,  P.  L,.  890,  absolutely. 

An  act  entitled  "An  Act  to  amend  an  act  approved  the  twenty- 
fourth  day  of  February,  one  thousand  eight  hundred  thirty-four, 
entitled  'An  Act  relating  to  executors  and  administrators,'  "  ap- 
proved May  23,  1913,  P.  L.  344,  absolutely. 


FIDUCIARIES  ACT— SECTION  63  491 

An  act  entitled  "An  Act  relating  to  the  real  estate  of  persons 
presumed  to  be  dead,  and  providing  a  method  of  freeing  such 
estate  from  all  claim  or  interest  of  such  persons,"  approved  May 
28,  1913,  P.  L.  369,  absolutely. 

An  act  entitled  "A  supplement  to  an  act,  entitled  'An  Act  relat- 
ing to  the  grant  of  letters  of  administration  upon  the  estates  of 
persons,  presumed  to  be  dead,  by  reason  of  long  absence  from 
their  former  domicile/  approved  June  twenty-fourth,  one  thou- 
sand eight  hundred  and  eighty-five;  providing  for  the  grant  of 
ancillary  letters  of  administration  in  this  commonwealth,  upon 
the  estates  of  persons,  presumed  to  be  dead,  by  reason  of  long 
absence  from  their  former  domicile,  in  any  other  state,  territory, 
or  foreign  country,  who  have  left  personal  estate  within  this  com- 
monwealth," approved  May  28,  1913,  P.  L.  373,  absolutely. 

An  act  entitled  "An  Act  to  amend  an  act  approved  the  ninth  day 
of  June,  one  thousand  nine  hundred  and  eleven,  entitled  'An  Act 
relating  to  private  sales  of  real  estate,  ordered,  decreed,  or  ap- 
proved by  the  orphans'  courts ;  and  providing  a  method  of  giving 
notice  of  such  sales,  and  validating  such  private  sales  of  real 
estate,  heretofore  made  under  the  authority  of  the  orphans'  courts, 
for  the  payment  of  debts/  "  approved  June  12,  1913,  P.  L.  470, 
absolutely. 

An  act  entitled  "An  Act  to  amend  an  act,  approved  the  four- 
teenth day  of  April,  one  thousand  eight  hundred  and  fifty-one, 
entitled  'An  Act  relating  to  the  commencement  of  actions,  to  judg- 
ments and  decrees  for  the  payment  of  money  to  the  widows  and 
children  of  decedents,  to  partitions  in  the  common  pleas,  relative 
to  penalties  on  telegraph  operators,  to  pleadings  in  certain  actions 
of  debt,  to  actions  of  ejectments,  to  the  protection  of  fences,  to 
partnerships,  to  limitations  of  writs  of  entry  in  manors,  lands  and 
tenements,  to  the  exemption  laws,  to  reports  of  the  supreme  court, 
to  appeals  relating  to  wards,  boroughs  and  township  officers,  to 
the  acknowledgments  of  deeds  and  sequestration  of  life  estates/ 
by  regulating  the  appointment  and  number  of  appraisers,"  ap- 
proved July  21,  1913,  P.  L,.  877,  absolutely. 

Section  i  of  an  act  entitled  "An  Act  authorizing  the  several 
orphans'  courts  to  empower  guardians  and  trustees  of  estates  of 
minors  to  elect,  in  writing,  to  take  land  in  fee,  which  has  been 
ordered  to  be  sold  by  the  provisions  of  any  duly  probated  will,  in 
lieu  of  legacies  bequeathed  or  distributable  to  said  minors  from  the 
proceeds  of  such  sale,  and  validating  certain  elections  to  take 


492  FIDUCIARIES  ACT— SECTION  63 

land  in  lieu  of  legacies  heretofore  made  pursuant  to  an  order  of 
court,"  approved  July  22,  1913,  P.  L.  908,  absolutely. 

An  act  entitled  "An  Act  authorizing  the  orphans'  court  to  re- 
duce, under  certain  circumstances,  the  bond  of  any  fiduciary; 
imposing  duties  on  registers  of  wills  in  connection  therewith,"  ap- 
proved May  3,  1915,  P.  L.  218,  absolutely. 

An  act  entitled  "An  Act  relative  to  estates  of  decedents,"  ap- 
proved May  6,  1915,  P.  L.  265,  absolutely. 

An  act  entitled  "An  Act  to  amend  an  act  approved  the  twenty- 
fourth  day  of  February,  one  thousand  eight  hundred  thirty-four, 
entitled  'An  Act  relating  to  executors  and  administrators,'  as 
amended,"  approved  May  6,  1915,  P.  L.  267,  absolutely. 

An  act  entitled  "An  Act  to  amend  an  act,  entitled  'An  Act  to 
limit  the  duration  upon  real  estate  of  the  debts  of  decedents,  in- 
cluding the  expenses  of  the  settlement  of  the  estate,  and  to  pro- 
vide under  what  conditions  the  lien  may  be  continued,'  approved 
the  third  day  of  May,  one  thousand  nine  hundred  and  nine,  so  as 
to  restrict  the  revival  of  judgment  liens  by  the  death  of  the  debtor 
to  real  estate  still  owned  by  said  decedent  at  the  date  of  his 
death,"  approved  May  14,  1915,  P.  L.  475,  absolutely. 

An  act  entitled  "A  supplement  to  an  act  approved  the  fourteenth 
day  of  April,  one  thousand  eight  hundred  and  fifty-one,  entitled 
'An  Act  relating  to  the  commencement  of  actions  to  judgments 
and  decrees  for  the  payment  of  money  to  the  widows  and  children 
of  decedents,  to  partitions  in  the  common  pleas,  relative  to  penal- 
ties on  telegraph  operators,  to  pleadings  in  certain  actions  of  debt, 
to  actions  of  ejectments,  to  the  protection  of  fences,  to  partner- 
ships, to  limitations  of  writs  of  entry  in  manors,  lands,  and  tene- 
ments, to  the  exemption  laws,  to  reports  of  the  supreme  court,  to 
appeals,  relating  to  wards,  boroughs,  and  township  officers,  to  the 
acknowledgments  of  deeds  and  sequestration  of  life  estates,'  pro- 
viding a  method  of  allowing  a  widow's  exemption,  where  the 
property  consists  of  real  estate  not  readily  divided,"  approved 
June  i,  1915,  P.  L.  682,  absolutely. 

An  act  entitled  "An  Act  to  amend  section  three  of  an  act,  ap- 
proved the  fourteenth  day  of  April,  Anno  Domini  one  thousand 
nine  hundred  and  five,  entitled  'A  supplement  to  an  act,  entitled 
"An  Act  relating  to  the  granting  of  letters  of  administration  upon 
the  estates  of  persons,  presumed  to  be  dead,  by  reason  of  long  ab- 
sence from  their  former  domicile,"  approved  June  twenty-fourth, 
one  thousand  eight  hundred  and  eighty-five;  providing  for  the 


FIDUCIARIES  ACT— SEC.  63;  ACT  JULY  11, 1917  (P.L.79O)—  SBC.I  493 

probate  of  a  will  of  a  person  whose  death  by  presumption  has 
been  established,  and  for  attachment  of  such  will  to  letters  of 
administration  granted  in  the  case,'  by  providing  for  the  issuance 
of  letters  testamentary  to  the  executor  named  in  such  will,  in  the 
same  manner  and  form  as  if  such  supposed  decedent  were  ac- 
tually dead,"  approved  June  i,  1915,  P.  L.  689,  absolutely. 

An  act  entitled  "An  Act  to  amend  section  five  of  an  act,  entitled 
'An  Act  relating  to  the  grant  of  letters  of  administration  upon  the 
estates  of  persons  presumed  to  be  dead,  by  reason  of  long  absence 
from  their  former  domicile' ;  approved  the  twenty-fourth  day  of 
June,  Anno  Domini  one  thousand  eight  hundred  and  eighty-five, 
by  authorizing  the  several  orphans'  courts  of  this  commonwealth 
to  accept  refunding  bonds  from  the  distributees  without  sureties, 
in  certain  cases,"  approved  June  n,  1915,  P.  L.  945,  absolutely. 

All  other  acts  of  assembly,  or  parts  thereof,  that  are  in  any  way 
in  conflict  or  inconsistent  with  this  act,  or  any  part  thereof,  are 
hereby  repealed.  Provided,  however,  that  nothing  in  this  act 
shall  be  construed  to  repeal  or  in  any  way  affect  the  existing  law 
requiring  publication  of  legal  advertisements  or  notices  in  legal 
journals  or  periodicals  designated  by  rule  of  court  for  that 
purpose.1 

1This  proviso  did  not  appear  in  the  commissioners'  draft. 

ACT  OF  JULY  ii,  1917  (P.  L.  790.) 

624.  RIGHTS  OF  FIDUCIARIES  AS  TO  COAL  LEASES 
AUTHORIZING  TRUSTEES,  GUARDIANS,  AND 
OTHER  FIDUCIARIES  TO  SELL,  ASSIGN, 
ALTER,  MODIFY  OR  SUPPLEMENT  COAL 
MINING  LEASES,  WITH  THE  APPROVAL  OF 
THE  COURT  HAVING  JURISDICTION  OF 
THEIR  ACCOUNTS. 

SECTION  i.  Be  it  enacted,  &c.  That  from  and  after  the  pas- 
sage of  this  act,  any  trustee,  guardian,  or  other  fiduciary,  having 
an  interest  in  any  coal-mining  lease,  may  sell,  assign,  and  with 
the  consent  of  the  lessees,  thereof,  alter,  modify  or  supplement 
such  coal  mining  lease,  with  the  approval  of  the  court  having 
jurisdiction  of  the  accounts  of  such  fiduciary. 

The  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447,  46  (g),  abolished  the 
concurrent  jurisdiction  formerly  exercised  by  the  court  of  common 


494          ACT  OF  JULY  ii,  1917  (P.  L.  790)— SECTION?  i,  2 

pleas  and  the  orphans'  court  over  the  accounts  of  testamentary  trustees 
appointed  nominatim  by  the  will,  and  vested  such  jurisdiction  exclusively 
in  the  orphans'  court  of  the  county  where  the  will  is  probated. 

Under  the  Act  of  July  11,  1917,  P.  L.  796,  the  orphans'  court  has 
jurisdiction  of  a  petition  by  a  testamentary  trustee  to  modify  the  terms 
of  a  coal  mining  lease  authorized  by  a  decree  of  the  court  of  Common 
pleas.  This  is  a  remedial  act  and  relates  to  procedure,  and  such  a 
statute  will  operate,  in  the  absence  of  a  saving  clause,  to  transfer  juris- 
diction even  as  the  pending  proceedings. 

"We  have  now  come  to  the  conclusion  that  we  have  jurisdiction  in  the 
premises.  So  far  as  the  proceedings  in  the  court  of  common  pleas  No.  3 
are  concerned,  it  is  clear  that  the  court  did  no  more  than  to  authorize 
the  trustee  to  make  leases  for  the  term  of  fifteen  years,  and  its  decrees 
did  not  authorize  or  direct  the  provision  as  to  royalties  etc.,  that  are 
now  alleged  to  be  unfairly  onerous  upon  the  lessees.  But  although  the 
Baird  Snyder  lease  was  specifically  authorized  by  the  decree  of  the 
court  of  common  pleas  No.  i,  we  are  of  opinion,  that  the  jurisdiction 
to  modify  its  terms  is  also  by  the  Act  of  July  n,  1917,  P.  L.  790,  vested 
in  this  court.  That  act  is  remedial  in  character,  and  relates  to  procedure ; 
and  the  general  rule  in  such  cases  is  that  such  a  statute  will  operate,  in 
the  absence  of  a  saving  clause,  to  transfer  jurisdiction  even  as  to  pending 
proceedings.  There  is  good  reason  in  the  present  instance  for  our 
jurisdiction,  for  the  account  of  the  trustee  should  clearly  be  filed  in  this 
court,  and  it  is  eminently  proper  that  any  modification  of  this  lease,  the 
rentals  of  which  would  be  included  in  an  account,  should  also  be  subject 
to  our  approval."  GEST,  J.,  in  Girard's  Est,  48  Pa.  C.  C.  608,  29  Dist  62. 

625.     PROCEDURE. 

SECTION  2.  The  procedure  under  this  Act  shall  be  the  same  as 
the  procedure  for  the  sale  of  real  estate  prescribed  by  sections 
four  and  twelve  of  the  Revised  Price  Act  of  one  thousand  nine 
hundred  and  seventeen. 

See  Sees.  183  and  191,  supra. 

See  form  78. 

See  Girard's  Est.,  48  Pa.  C.  C.  608,  29  Dist.  62. 


FORMS 

OFFICIAL  FORMS  OF  THE  REGISTER  OF  WILLS  OF  PHILADELPHIA  COUNTY. 

1.  Petition  for  probate  and  letters  testamentary.  (Sec.  358). 

2.  Oath  of  executor,  380,  381. 

3.  Oath  of  subscribing  witnesses,  215. 

4.  Oath  of  subscribing  witnesses  where  will  executed  by  mark,  216. 

5.  Oath  of  subscribing  witnesses  to   will  disposing  of   real  estate  in 

another  state  requiring  special  proof,  215. 

6.  Same,   longer    form,   215. 

7.  Oath  to  signature  to  will  where  no  witnesses,  215. 

8.  Oath   to    signature   of   a   witness   who   is   dead   or   cannot   be    lo- 

cated, 215. 

9.  Decree  of  probate. 

10.  Petition  for  letters  of  administration,  358. 

11.  Bond   and   oath  of   administrator,  381-2-3. 

12.  Petition  for  letters  of  administration  c.  t.  a.,  358-9. 

13.  Petition  for  letters  of  administration  d.  b.  n.  c.  t.  a.,  358,  360. 

14.  Bond  and  oath  of  administrator  c.  t.  a.,  382-3. 

15.  Inventory  and  appraisement,  392. 

16.  Advertisement  of  letters,  391. 

OFFICIAL  FORMS  OF  ORPHANS'  COURT  OF  PHILADELPHIA  COUNTY. 

17.  Certificate  of  appointment  of  trustee  with  security,  584. 

18.  Certificate  of   appointment   of  guardian  without  security,  599. 

19.  Certificate  of  appointment  of  guardian  with  security,  599. 

20.  Guardian's   inventory,   606. 

21.  Bond  of  guardian  of  minor's  estate,  605. 

22.  Bond  of  trustee  appointed,  388. 

23.  Bond  of  fiduciary  on  sale  of  real  estate,  192. 

24.  Bond    of    fiduciary    for    miscellaneous   transactions    where   security 

is  required,  388. 

25.  Bond  for  costs  on  appeal  from  orphans'  court,  163. 

26.  Justification  by  individual  sureties. 

27.  Citation,  116. 

28.  Petition  for  distribution  of  intestate's  estate,  552. 

29.  Petition   for  distribution  under  a  will,  552. 

30.  Petition  for  distribution  of  a  trust  estate,  552. 

OFFICIAL  FORMS  OF  REGISTER  OF  WILLS  OF  ALLEGHENY  COUNTY. 

31.  Affidavit  of  death  testate. 

32.  Citation  to  produce  will,  267. 

33.  Subpoena  to  witness,  268. 

34.  Commission  and  deposition  of  witnesses  to  will,  269. 

35.  Petition  for  probate  and  letters  testamentary,  358. 

36.  Oath  of  subscribing  witnesses  to  will,  215. 

495 


496  FORMS 

37.  Oath  to  decedent's  signature  where  no  witnesses,  215. 

38.  Citation  to  show  cause  why  letters  should  not  issue. 

39.  Renunciation  of  right  to  administer,  357. 

40.  Petition  for  letters  of  administration,  358. 

41.  Bond  and  oath  of  administrator,  381-2-3. 

42.  Petition  for  letters  of  administration  c.  t.  a.,  358-9- 

43.  Oath  of  administrator  c.  t.  a.,  382. 

44.  Bond  of  administrator  c.  t.  a.,  383. 

45.  Bond  of  non-resident  executor,  384. 

46.  Petition  for  probate  of  foreign  will,  266. 
<   47.  Certificate  of  filing  foreign  will,  592. 

48.  Petition  for  ancillary  letters  of  administration  on  foreign  will,  592. 

49.  Certificate  of  filing  foreign  letters  of  administration,  592. 

50.  Appeal  from  the  register,  281. 

51.  Bond  of   caveator,  281. 

52.  Inventory  and  appraisement,  392. 

53.  Affidavit   of   non-resident    executor    as   to    debts    and    transfer   of 

securities,  592. 

OFFICIAL  FORMS  OF  ORPHANS'  COURT  OF  ALLEGHENY  COUNTY. 

54.  Petition  for  distribution  of  intestate's  estate,  552. 

55.  Petition  for  distribution  under  a  will,  552. 

MISCELLANEOUS  FORMS. 

(The  following  forms  are  not  official,  but  are  merely  drafted  from 
petitions  which  from  time  to  time  have  been  presented  to  the  orphans' 
courts  of  various  counties  under  the  Acts  of  Assembly  herein  set  forth. 
To  draft  a  form  which  would  suit  every  case  is,  of  course,  impossible 
and  an  attempt  has  been  made  only  to  indicate  in  a  general  way  the 
subject  matter  which  should  appear  in  each  petition  to  show  the  juris- 
diction of  the  court,  the  status  of  the  parties  in  interest  and  the  reasons 
for  the  petition.  It  should  be  noted  that  in  Philadelphia  County  under  a 
recent  ruling,  it  is  required  that  the  decree  be  placed  at  the  beginning, 
rather  than  at  the  end  of  the  petition.  The  forms  herein  for  petitions 
under  the  Revised  Price  Act  are  modeled,  to  a  large  extent,  on  the  forms 
given  by  Roland  R.  Foulke,  Esq.,  in  his  Treatise  on  the  Price  Act.  In 
such  petitions  in  Philadelphia  county  by  a  recent  ruling  it  is  of  importance 
that  the  affidavits  by  real  estate  experts  should  show  that  they  have  no 
interest  in  the  subject-matter  of  the  petition.) 

56.  Petition   for   citation  to   show   cause   why   an   inquest   in   partition 

should  not  be  granted,  4. 

57.  Petition  for  citation  to  show  cause  why  guardian  ad  litem  should 

not  be  appointed,   116,  616. 

58.  Petition   under   the   Revised    Price   Act   by   executor    for   leave   to 

sell   real   estate   at  private   sale  where  no  authority  to   sell   is 
given  in  the  will,   183. 

59.  Petition   under   the   Revised    Price   Act  by   ancillary   executor   and 

trustee  for  leave  to  sell   real  estate  at  private  sale  when  the 
time  fixed  for  sale  in  the  will  has  nQt  arrived,   183. 


FORMS  497 

60.  Petition  under  the  Rivised  Price  Act  by  a  church  holding  property 

in  trust   for  leave  to  sell  the  same  at  private  sale  where  no 
power  of  sale  is  given  under  the  will,  183. 

61.  Petition  under  the  Revised  Price  Act  by  Trustee  for  leave  to  sell 

real  estate  at  private  sale  where  the  trustee  has  no  power  of 
sale  under  the  will,  183. 

62.  Petition  under  the  Revised  Price  Act  by  trustee  for  leave  to  join 

with  others  in  the  private  sale  of   real  estate  where  there  is 
no  power  of  sale  in  the  will,  183. 

63.  Petition  under  the  Revised  Price  Act  by  guardian  for  leave  to  sell 

real  estate  at  private  sale  where  the  premises  are  in  bad  repair 
and  the  sale  will  increase  the  income  for  the  minor,  183. 

64.  Petition   under  the   Revised    Price   Act   by   guardian    for   leave  to 

join  with   others   in  the  private  sale  of   real  estate  to  avoid 
partition,  183. 

65.  Petition  under  the  Revised  Price  Act  by  trustee  for  leave  to  sell 

an  irredeemable  ground  rent  at  private  sale,  183. 

66.  Petition  under  the  Revised  Price  Act  by  trustee  for  leave  to  assign 

and  extinguish   an   irredeemable  ground   rent  on   a  three  per 
cent,  basis,  183. 

67.  Petition  under  the  Revised   Price  Act  by  a  guardian   for  the  ap- 

pointment of  a  trustee  to  make  private  sale  of  real  estate  in 
which  the  minor  has  an  interest,  185. 

68.  Petition  under  the  Revised  Price  Act  by  trustees  for  leave  to  sell 

real  estate  at  private  sale  and  by  a  co-trustee  to  purchase  at 
such   sale,  202. 

69.  Election  of  widower  to  take  under  will,  245. 

70.  Election  of  widow  to  take  against  will,  245. 

71.  Petition   to  the   register   to   revoke   letters   of   administration  upon 

the  discovery  of  a  will,  264. 

72.  Petition  to   register   for  citation   on   party  in   custody  of   will  to 

present  same  for  probate  or  on  failure  thereof  to  show  cause 
why  letters  of  administration  should  not  be  granted,  267. 

73.  Petition  to  the  Orphans'  Court  sur  appeal  from  Register  to  open 

the  probate  of  a  will  and  allow  probate  of  an  after-discovered 
codicil,  285. 

74.  Petition  for  the  appointment  of  an  administrator  d.  b.  n.  c.  t.  a. 

where  the  decedent  has  been  dead  more  than  21  years,  356. 

75.  Petition  by  guardian  for  reduction  of  security  on  his  bond,  389. 

76.  Petition  for  widow's  exemption  in  cash,  403. 

77.  Petition  by  Trustee  for  leave  to  execute  a  lease  of  real  estate  for 

ten  years,  497. 

78.  Petition  by  trustee  for  leave  to  join  in  the  execution  of  lease  of 

coal  and  mineral  rights  for  a  period  exceeding  five  years,  497, 
625. 

79.  Petition  by  trustee  for  leave  to  purchase  real  estate  with  uninvested 

principal,  529. 

32 


498  FORMS 

80.  Petition  by  trustee  for  leave  to  purchase  real  estate  requiring  an 

investment  of  an  amount  larger  than  that  authorized  by  the 
will,  529. 

81.  Petition  by  creditor  for  citation  on  executor  to  file  an  account,  539. 

82.  Petition  by  an   accountant   for  the  appointment  of   an   auditor  in 

counties  having  no  separate  orphans'  court,  550. 

83.  Petition  to  open  an  adjudication  based  upon  an  erroneous  statement 

of  fact,  551. 

84.  Petition  for  the  review  of  an  adjudication  by  a  known  creditor  who 

was  given  no  notice  of  audit,  551. 

85.  Petition    for   the    distribution   of    an    estate   not    exceeding    three 

hundred  dollars,  554. 

86.  Petition  for  the  discharge  of  an  executor,  563. 

87.  Petition  for  the  discharge  of  ancillary  executor,  563. 

88.  Petition  for  the  discharge  of  administrator  d.  b.  n.  c.  t.  a.,  563. 

89.  Petition  for  the  discharge  of  the  guardian  of  the  estate  of  a  minor, 

563. 

90.  Petition  for  the  discharge  of  surety  on  the  bond  of  a  trustee,  563. 

91.  Petition  for  the  appointment  of  a  substituted  trustee  on  the  resigna- 

tion of  the  trustee,  584. 

92.  Petition  for  the  discharge  of  trustee  and  appointment  of  substituted 

trustee  on  the  resignation  of  the  former,  584. 

93.  Certificate  and  affidavit  by  foreign  fiduciary  entitled  to  an  award 

in  distribution,  595. 

94.  Petition  for  the  appointment  of  a  guardian  for  the  estate  of  a  minor 

under  the  age  of  14  years,  599. 

95.  Petition  for  the  appointment  of  a  guardian  for  the  estate  of  a  minor 

over  the  age  of  14  years,  599. 

96.  Petition  by  guardian  for  leave  to  pay  mother  of  minor  income  and 

portion  of  principal  for  support,  607. 

97.  Petition  by  guardian  for  leave  to  pay  income  from  trust  to  mother 

of  minor  for  its  education,  maintenance  and  support,  607. 

98.  Petition  by  guardian  of   minor  to  make   payment  of   principal   in 

relief  of  deficiency  of  income,  607. 

99.  Petition  by  guardian  of  minor  to  make  payment  of  a  lump  sum  out 

of  income  to  defray  wedding  expenses  of  minor,  607. 

100.  Petition  by  trustee  to  make  payment  to  foreign  guardian,  607. 

101.  Petition  for  appointment  of  guardian  ad  litem  for  minors  under  the 

age  of  14  years  for  representation  in  sale  of  real  estate,  616. 

102.  Petition  for  appointment  of  guardian  ad  litem  for  minor  over  the 

age  of  14  years  for  representation  at  audit,  616. 

103.  Petition  by  guardian  for  leave  to  enter  security  to  receive  award 

from  foreign  jurisdiction. 


FORMS  i,  2  499 

i.     PETITION  FOR  PROBATE  AND  LETTERS  TES- 
TAMENTARY.    (Sec.  358.) 

To  ,  Hsq.,  Register  of  Wills  and  ex-officio  Clerk 

of  the  Orphans'  Court  for  the  City  and  County  of  Philadelphia, 

in  the  Commonwealth  of  Pennsylvania. 

In  the  matter  of  the  probate  of  the  last  will  and  testament 

of }  deceased. 

The  petition  of respectfully  showeth  that the 

Execut named  in  the  last  will  and  testament  of  

dated  the day  of A.  D.  19 —  That  said was 

a  citizen  of  the  United  States  and  resident  of  Philadelphia  County, 

State  of  Pennsylvania,  and  departed  this  life  at  number 

in  the  County  of and  State  of on the day 

of A.  D.,  19—,  at o'clock M. 

The  said  testa  was  possessed  of  personal  property  to  the 

value  of  $ and  of  real  estate  (less  incumbrance)  to  the 

value  of  $ as  near  as  can  be  ascertained,  situated  as 

follows : Therefore  the  said respectfully  appl — 

for  probate  of  the  said  last  will  and  testament and  for 

letters  testamentary  thereon. 

Dated  ,  A.  D.,  19 — . 

Philadelphia  County,  ss: 

,  named  in  the  above  application,  being  duly  

according  to  law,  say      that  the  matters  and  things  set  forth  in 

the  foregoing  petition  are  true  to  the  best  of  knowledge 

and  belief. 

and  subscribed  before  me,  at' 


Philadelphia, A.  D.,  19 — 


(Signature) 


2.     OATH  OF  EXECUTOR.    380,  381 

City  and  County  of  Philadelphia,  ss: 

do  that  as  the  of  the  foregoing  last  will 

and  testament  deceased,  will  well  and  truly  ad- 
minister the  goods  and  chattels,  rights  and  credits  of  said  deceased. 

according  to  law,  and  that  will  diligently  and  faithfully 

regard  and  well  and  truly  comply  with  the  provisions  of  the  law 


500  FORMS  2,  3,  4,  5 

relating  to  collateral  inheritances.     That  the  said  testat —  died 

on  the day  of A.  D.,  19 — ,  at  —  o'clock  —  M. 

and  subscribed  before  me,' 

the  date  above,  and  letters  testa- 
mentary granted  unto 


(Signature) 

3.     OATH  OF  SUBSCRIBING  WITNESSES.    215 

Then  personally  appeared the  subscribing  witnesses  to 

the  foregoing deceased,  and  on solemn did  say 

that  present  and  did  see  and  hear  deceased,  the 

testa —  therein  named  seal,  publish  and  declare  the  same 

as  and  for and  testament and  at  the  doing  thereof 

was  of  sound  disposing  mind,  memory  and  understanding  to 

the  best  of knowledge  and  belief. 

and  subscribed  before^] 

me,  the  above  date. 


f 


(Signatures) 


4.     OATH    OF    SUBSCRIBING    WITNESSES    WHERE 
WILL  EXECUTED  BY  MARK.     216 

City  and  County  of  Philadelphia,  ss: 

Then  personally  appeared  the  subscribing  witnesses  to 

the  foregoing  deceased,  and  on  solemn  did 

say  that present  and  did  see  and  hear deceased,  the 

testa —  therein  named,  make mark,  seal,  publish  and  declare 

the  same  as  and  for and  testament and  that  at  the 

doing  thereof  was  of  sound  disposing  mind,  memory  and 

understanding,  to  the  best  of  knowledge  and  belief.     The 

name  of  testat —  having  been  subscribed  in  presence,  and 

by  direction  and  authority. 

and  subscribed  before^ 


me,  the  above  date. 


(Signatures) 


5.  OATH  OF  SUBSCRIBING  WITNESSES  TO  WILL 
DISPOSING  OF  REAL  ESTATE  IN  ANOTHER 
STATE  REQUIRING  SPECIAL  PROOF.  215 

City  and  County  of  Philadelphia,  ss: 

Then  personally  appeared the  subscribing  witnesses  to 

the  foregoing deceased,  and  on solemn did  say 


FORMS  5,  6,  7  501 

that present and  did  see  and  hear deceased, 

the  testa —  therein  named  seal,  publish  and  declare  the 

same  as  and  for  and  testament  and  that  at  the 

doing  thereof  was  of  sound  disposing  mind,  memory  and 

understanding,  to  the  best  of  knowledge  and  belief.     And 

further,  that  the  said  testat —  so  signed  the  same  in presence, 

and  at  request the  said  deponents  in  presence  and  in 

the  presence  of  each  other  subscribed  their  own  proper 

signatures  and  handwriting  as  witnesses  thereto,  all  being  present 
at  the  same  time  at  the  execution  of  said  will. 

and  subscribed  before   ^ 

me,  the  above  date.  > 


J  (Signatures) 

6.     SAME,  LONGER  FORM.     215 

City  and  County  of  Philadelphia,  ss: 

Then  again  personally  appeared  the  subscribing  wit- 
nesses to  the  foregoing deceased,  and  on solemn 

did  say  that  present  together  with  the  other  sub- 
scribing witness  and  did  see  and  hear deceased,  the  testat — 

therein  named  seal,  publish  and  declare  the  same  as  and 

for  h —  last  will  and  testament and  that  at  the  doing  thereof 

testat —  was  of  sound  disposing  mind,  memory  and  understanding, 

to  the  best  of  knowledge  and  belief.     And  further,  that 

the  said  testat —  so  signed  the  same  in presence  and  at  the 

request  of  testat —  the  said  deponent  in  the  presence  of  

the  other  subscribing  witnesses,  and  the  other  subscribing  witness 

in  the  presence  of  the  testat —  and  in  the  presence  of  each 

other subscribed  their  own  proper  signatures  and  hand- 
writing as  witnesses  thereto,  all  being  present  at  the  same  time 
at  the  execution  of  said  will. 
and  subscribed  before   ^ 


me,  the  above  date. 


J  (Signatures) 

7.     OATH    TO    SIGNATURE    TO    WILL   WHERE    NO 

WITNESSES.    215. 
City  and  County  of  Philadelphia,  ss: 

Registers'   Office,   192 — 

Then  personally  appeared who  being  duly 


502  FORMS  7,  8,  9 

according  to  law,  say      that  he well  acquainted  with 

the  Test above  named,  in lifetime,  and 


-familiar  with signature,  having  frequently  seen- 


write  name  as  well  as  other  matters;  that  

carefully  examined  the  foregoing  signature  and  verily 

believe to  be  in own  proper  handwriting. 

and  subscribed 

before  me,  the  date  above. 
Deputy  Register 

8.  OATH  TO  SIGNATURE  OF  A  WITNESS  WHO  IS 

DEAD  OR  CANNOT  BE  LOCATED.    215. 

City  and  County  of  Philadelphia,  ss: 

Then  personally  appeared who  being  duly 

according  to  law,  say  that  he  well  acquainted  with 

one  of  the  subscribing  witnesses  to  the  foregoing 

deceased familiar  with signature      having 

frequently  seen  write  name       as  well  as 

other  matters;  that  carefully  examined  the  foregoing 

signature and  verily  believe to  be  in 

own  proper  handwriting 

and  subscribed  ^ 

before  me,  the  above  date.  > 
Deputy  Register.  J 

9.  DECREE  OF  PROBATE. 

STATE  OF  PENNSYLVANIA, 

City  and  County  of  Philadelphia 

Be  it  Remembered,  That  on  the day  of 

A.  D.  192 ,  before  me,  ,  Register  of 

Wills  for  the  City  and  County  aforesaid,  after  due  proof  and 
hearing  had,  according  to  the  Laws  of  the  said  State,  IT  IS 
ORDERED  AND  DECREED,  that  the  last  Will  and  Testa- 
ment    late  of  said  City  and  County, 

deceased,  be  duly  admitted  to  probate  and  filed  of  record  in  the 
office  of  the  Register  of  Wills  of  the  said  City  and  County. 

IN  TESTIMONY  WHEREOF,  I  have  hereunto  set  my 
hand,  the  day  and  year  above  written. 

Register 


FORMS  10,  ii  503 

10.    PETITION  FOR  LETTERS  OF  ADMINISTRATION. 
358. 

TO ,  ESQ., 

Register  of  Wills  for  the 

County  of  Philadelphia,  in  the 

Commonwealth  of  Pennsylvania. 

In  the  matter  of  the  Administration  of  the  Goods,  Chattels, 
Rights  and  Credits  of Deceased 

The  Petition  of respectfully  showeth  that 

was  a  Citizen  of  United  States  and  a  resident  of  Philadelphia 
County,  State  of  Pennsylvania,  and  departed  this  life  intestate 

at  number in  the  County  of  and  State 

of on  the day  of A.  D.  19 — 

at o'clock M.     That  the  said 

deceased  left surviving  the  following  named  widow 

or  husband,  heirs  and  next  of  kin,  to  wit : — 

(Relationship)  (Residence) 

and  no  other  next  of  kin. 

The  said  intestate  was  possessed  of  Goods,  Chattels,  Rights  and 

Credits,  to  the  value  of  $ and  of  real  estate  (less  in- 

cumbrance)  to  the  value  of  $ as  near  as  can  be  ascer- 
tained, situated  as  follows:  Therefore  the  said 

respectfully  appl for  Letters  of 

Administration  upon  the  Goods,  Chattels,  Rights 

and  Credits,  of  which  said died  possessed.    Dated 

A.  D.  19 

Philadelphia  County,  ss: 

named  in  the  above  application,  being  duly- 


according  to  law  say  that  the  matters  and  things  set  forth  in  the 

foregoing  Petition  are  true  to  the  best  of  knowledge 

and  belief. 

and  subscribed  before  me,  at 

Philadelphia, A.  D.  19 ^ 

Deputy  Register  ?• 


J     (Signatures) 

ii.    BOND  AND  OATH  OF  ADMINISTRATOR.    381-3. 

Know  all  men  by  these  Presents,  That  we are 

held  and  firmly  bound  unto  the  Commonwealth  of  Pennsylvania, 
in  the  sum  of  dollars,  to  be  paid  to  the  said 


504  FORMS  ii 

Commonwealth :  To  which  payment  well  and  truly  to  be  made, 
we  bind  ourselves,  jointly  and  severally,  for  and  in  the  whole,  our 

heirs,  executors  and  administrators, and  each  and 

every  of  them,  firmly  by  these  presents. 

Sealed  with  our  seals.  Dated  the day  of  

in  the  year  of  our  Lord  One  Thousand  Nine  Hundred  and — = 

(19..,.)- 

The  Condition  of  this  Obligation  is,  That  if  the  above  bounden 
Administrat of  all  and  singular  the 


Goods,  Chattels  and  Credits  of  -  deceased,  do  make, 
or  cause  to  be  made,  a  true  and  perfect  inventory  of  all  and  sing- 
ular the  Goods,  Chattels  and  Credits  of  the  said  deceased,  which 
have  come  or  shall  come  to  the  hands,  possession  or  knowledge 
of  the  said  Administrat  -  ,  or  into  the  hands  and  possession 
of  any  other  person  or  persons,  for  -  and  the  same 
so  made,  do  exhibit  or  cause  to  be  exhibited  into  the  REGISTER'S 
OFFICE,  in  the  County  of  Philadelphia,  within  thirty  days  from 
the  date  hereof,  and  the  same  Goods,  Chattels  and  Credits,  and 
all  other  the  Goods,  Chattels  and  Credits  of  the  said  deceased, 
at  the  time  of  -  death,  which  at  any  time  after 
shall  come  to  the  hands  and  possession  of  the  said  Administrat  —  , 
or  into  the  hands  and  possession  of  any  other  person  or  persons 
for  -  do  well  and  truly  administer  according 
to  law.  And  further  do  make  or  cause  to  be  made,  a  just  and 
true  account  of  said  Administration  at  the  expiration  of  six 
months  from  the  date  hereof,  or  when  thereunto  required  by 
the  Orphans'  Court.  And  all  the  rest  and  residue  of  the  said 
Goods,  Chattels  and  Credits  which  shall  be  found  remaining 
upon  said  Administrat  -  account,  the  same  being  first 
examined  and  allowed  by  the  Orphans'  Court  of  the  City  and 
County  of  Philadelphia,  shall  deliver  and  pay  unto  such  person 
or  persons  as  the  said  Orphans'  Court,  by  their  decree  or  sentence 
pursuant  to  law,  shall  limit  and  appoint,  and  shall  well  and 
truly  comply  with  the  laws  of  this  Commonwealth  relating  to 
Collateral  Inheritances.  And  if  it  shall  hereafter  appear  that 
any  last  Will  and  Testament  was  made  by  the  said  deceased,  and 
the  same  shall  be  proved  according  to  law,  if  the  Said  Adminis- 
, being  thereunto  required,  do  surrender  the  said 


Letters  of  Administration  into  the  REGISTER'S  OFFICE  aforesaid, 


FORMS  ii,  12  505 

then  this  obligation  to  be  void — otherwise  to  remain  in  full  force. 
Signed,  sealed  and  delivered  in  the  presence  of 

(Signatures) 

REGISTER'S  OFFICE, 

City  and  County  of  Philadelphia,  ss: 

A.  D.   19 .     Then  personally  came  the  within 

named and  on solemn did 

depose,  declare  and  say,  That believe  that  the  within- 
mentioned  decedent  on  the day  of A.  D.  19 — , 

at o'clock M.,  died  without  a  will.    That will, 

as  the  Administrat aforesaid  well  and  truly  administer 

the  Goods,  Chattels  and  Personal  Estate,  agreeably  to  law.  That — 
will  immediately  publish  for  creditors  once  a  week  for  six  con- 
secutive weeks;  and  render  into  the  Register's  Office,  within 
thirty  days  from  this  date,  a  just  and  true  inventory  and  ap- 
praisement of  the  personal  estate  of  said  deceased,  and  additional 
inventories  when  necessary.  Also,  a  just  and  true  account,  calcu- 
lation and  reckoning  of said  administration  at  the  expira- 
tion of  six  months  from  this  date,  or  when  thereunto  legally 

required.     That will  well  and  truly  comply  with  the 

provisions  of  the  law  relating  to  Collateral  Inheritances.     And 

also  that And  also  that  the  whole  of  the  Goods, 

Chattels,  Rights  and  Credits  of  the  personal  estate  

died  possessed  of in  the  aggregate  do  not  in  value 

exceed  the  sum  of Dollars  to  the  best  of 

knowledge  and  belief. 

and  subscribed  before 

me  the  day  and  year  aforesaid,  and  letters  of 
administration  granted  unto 


-Deputy  Register 


(Signatures) 


12.    PETITION  FOR  LETTERS  OF  ADMINISTRATION 
C.  T.  A.    358-9. 

To  ,  Esq.,  Register  of  Wills  and  ex-officio  Clerk 

of  the  Orphans'  Court  for  the  City  and  County  of  Philadelphia, 

in  the  Commonwealth  of  Pennsylvania. 

In  the  matter  of  the  Probate  of  the  last  Will  and  Testament 

of  — • Deceased. 


506  FORMS  12,  13 

The  Petition  of  respectfully  showeth  that  the 

Execut named  in  the  last  Will  and  Testament  of 

a  Citizen  of  United  States  dated  the 

day  of A.  D.  i  has That 

the  petitioner the  residuary,  legatee      and  devisee 

named  in  the  said  Will.    That  said the  testat-    was 

a  resident  of  the  County  of  Philadelphia  and  State  of  Pennsyl- 
vania, and  departed  this  life  at  number  in  the 

County  of  and  State  of  on 

the day  of A.  D.  19 — ,  at o'clock M. 

The  said  testa       was  possessed  of  personal  property  to  the 

value  of  $ and  of  real  estate  (less  incumbrancej 

to  the  value  of  $— as  near  as  can  be  ascertained, 

situated  as  follows: Therefore  the  said 

respectfully  appl  for  Probate  of  the  said  last  Will 

and  Testament and  for  Letters  of  Administration 

cum  testamento  annexo. 

Dated ,  A.  D.  19 

Philadelphia  County,  ss: 

named  in  the  above  application,  being  duly 

according  to  law,  deposes  and  says  that  the  matters 

and  things  set  forth  in  the  within  Petition  are  true  to  the  best 

of knowledge  and  belief. 

and  subscribed  before  me,  at  ^ 

Philadelphia,  A.  D.  19—  V 


-Deputy  Register  J      (Signatures) 


13.    PETITION  FOR  LETTERS  OF  ADMINISTRATION 
D.  B.  N.  C.  T.  A.    358,  360. 

To ,  Esq.,  Register  cf  Wills  ond  ex-officio  Clerk 

of  the  Orphans'  Court  for  the  City  and  County  of  Philadelphia, 

in  the  Commonwealth  of  Pennsylvania. 

In  the  matter  of  granting  Letters  of  Administration  de  bonis 

non  cum  testamento  annexo  on  the  Estate  of 

Deceased.  Citizen  of  United  States.  PETITION. 

The  petition  of respectfully  showeth  that 

the  Execut of  the  last  Will  and  Testament 

of  deceased,  whose  Will  was  admitted  to  Pro- 
bate   1  ,  having  departed  this  life,  and  that  the  tes- 
tat   left  Goods,  Chattels,  Rights  and  Credits,  etc.,  unad- 


FORMS  13,  14  507 

ministered  by  the  said  Execut to  the  value  of  $- 


and  Real  Estate  as  to  which  power  of  sale  was  given  to  the 

Executor       to  the  value  of  $ 

Therefore,  the  said  respectfully  appl- 


for  Letters  of  Administration  de  bonis  non  cum  testamento  annexo 
upon  the  Goods,  Chattels,  Rights  and  Credits,  etc.,  of  which  the 
said  -  died  possessed  - 
Dated  -  A.  D.  19  - 
Philadelphia  County,  ss: 

(Residuary  Legatee) 

-  named  in  the  above  application,  being  duly  - 
according  to  law,  deposes  and  says  that  the  matter  and  things 
set  forth  in  the  within  Petition  are  true  to  the  best  of  - 
knowledge  and  belief. 

-  and  subscribed  before  me,  aH 
Philadelphia  -  A.  D.  192  —  >  - 


Deputy  Register         (Signatures) 


14.    BOND  AND  OATH  OF  ADMINISTRATOR  C.  T.  A. 
382-3. 

Know  all  Men  by  these  Presents,  That  we are 

held  and  firmly  bound  unto  the  Commonwealth  of  Pennsylvania, 
in  the  sum  of dollars,  to  be  paid  to  the  said  Com- 
monwealth: To  which  payment  well  and  truly  to  be  made,  we 
bind  ourselves,  jointly  and  severally,  for  and  in  the  whole,  our 

heirs,  executors  and  administrators, and  each  and 

every  of  them,  firmly  by  these  presents. 

Sealed  with  our  seals.  Dated  the day  of 

in  the  year  of  our  Lord  One  Thousand  Nine  Hundred  and 

-  (19 0 

The  Condition  of  this  Obligation  is,  That  if  the  above  bounden 
Administrat cum  testamento  annexo 


of  all  and  singular  the  Goods,  Chattels,  and  Credits  of 

deceased,  do  immediately  publish  for  Creditors,  &c.,  and  make, 
or  cause  to  be  made,  a  true  and  perfect  inventory  and  inven- 
tories according  to  law,  of  all  and  singular  the  Goods,  Chattels, 
and  Credits  of  the  said  deceased,  which  shall  have  come,  or  shall 
come,  to  the  hands,  possession  or  knowledge  of  the  said  Ad- 
ministrat ,  as  aforesaid,  or  unto  the  hands  or  possession  of 
any  other  person  or  persons  for  and  the  same  so  made 


508  FORMS  14 

to  exhibit,  or  cause  to  be  exhibited,  in  the  Register's  Office,  in  the 
County  of  Philadelphia,  within  thirty  days  from  the  date  hereof, 
and  the  same  Goods,  Chattels,  and  Credits,  and  all  other  the 
Goods,  Chattels,  and  Credits  of  the  said  deceased  at  the  time  of 
death,  which  at  any  time  after  shall  come  to  the  hands  or 
possession  of  said  Administrat  as  aforesaid,  or  unto  the 

hands  or  possession  of  any  other  person  or  persons  for  do 

well  and  truly  administer  according  to  law.     And   further  do 
make  or  cause  to  be  made,  a  just  and  true  account  of  said 

Administration,  at  the  expiration  of  six  months  of  the  date  hereof, 
or  when  thereunto  legally  required.  And  all  the  rest  and  residue 
of  the  said  Goods,  Chattels,  and  Credits,  together  with  the 
proceeds  of  any  sales  of  real  estate  the  said  Administrat 
may  make  under  the  will  of  decedent,  which  shall  be  found  re- 
maining upon  said  Administrat  account  (the  same  being 
first  examined  and  allowed  by  the  Orphans'  Court  of  the  City 
and  County  of  Philadelphia),  shall  deliver  and  pay  unto  such 
person  or  persons  respectively  as  the  said  Orphans'  Court,  by 
their  decree  and  sentence  pursuant  to  the  true  intent  and  mean- 
ing of  the  last  Will  and  Testament  of  the  said  deceased,  and  the 
law  now  in  force  in  this  Commonwealth,  shall  limit  and  appoint, 
and  shall  well  and  truly  comply  with  the  laws  of  this  Common- 
wealth relating  to  Collateral  Inheritances.  And  if  it  shall  here- 
after appear  that  any  later  Will  and  Testament  was  made  by 
the  said  deceased,  and  the  same  shall  be  proved  according  to 
law,  if  the  said  Administrat  as  aforesaid,  being  thereunto 
required,  do  surrender  the  said  Letters  of  Administration  in  the 
Register's  Office  aforesaid,  then  this  obligation  is  to  be  void — 
otherwise  to  be  and  remain  in  full  force. 

Signed,  sealed  and  delivered  in  the  presence  of 

(Signatures) 

REGISTER'S  OFFICE, 

City  and  County,  of  Philadelphia,  ss: 

A.  D.  19 .    Then  personally  came  the  within 

named  and  on  solemn  did 

depose,  declare  and  say,  That  the  within  named  decedent  died 

on  the day  of A.  D.  19         at        o'clock 

and  that  will  as  Administrat  aforesaid  well  and 

truly  administer  the  said  Estate,  agreeably  to  the  true  intent  and 


FORMS  14,  IS,  16  509 

meaning  of  the  last  Will  and  Testament  of  the  said  deceased  in 
the  law  now  in  force  in  this  Commonwealth.  That  will 
immediately  publish  for  creditors  once  a  week,  for  six  successive 
weeks,  and  render  unto  the  Register's  Office,  within  thirty  days 
of  this  date,  a  just  and  true  inventory  and  appraisement  of  the 
personal  estate  of  said  deceased,  and  additional  inventories  when 
necessary.  Also  a  just  and  true  account,  calculation  and  reckon- 
ing of  said  administration  in  six  months  from  this 

date,  or  when  thereunto  legally  required.     That  will 

well  and  truly  comply  with  the  provisions  of  law  relating  to 

Collateral  Inheritance.     And  also  that And  also 

that  the  whole  Estate  died  possessed  of  does  not  in 

value  exceed  the  sum  of  Dollars  to  the  best  of 

knowledge  and  belief. 

and  subscribed  before  "} 

the  day  and  year  aforesaid,  and  letters  granted    I 

unto I  

Deputy  Register      J    (Signatures) 


15.     INVENTORY  AND  APPRAISEMENT.     392. 

City  and  County  of  Philadelphia,  ss: 
Personally  came  before  me,  Register  of  Wills,  in  and  for  the 

said  City  and  County who  upon  their  solemn 

did  say  that  at  the  request  of  the they 

"well  and  truly  and  without  prejudice  or  partiality,  value  and 
appraise  the  Goods  and  Chattels,  Rights  and  Credits,"  which 

were  of  deceased,  "and  in  all  respects  perform 

their  duties  as  appraisers  to  the  best  of  their  skill  and  judgment." 

and  subscribed  this 

day  of  19 — ,  before  me 

Deputy  Register 

(Signatures) 

Inventory  and  appraisement  of  the  Goods  and  Chattels,  Rights 

and  Credits,  which  were  of  late  of  Philadelphia, 

taken  and  made  in  conformity  with  the  above  deposition. 

16.     ADVERTISEMENT  OF  LETTERS.    391. 

Estate  of deceased. 

Letters on  the  above  Estate  having 

been  granted  to  the  undersigned,  all  persons  indebted  to  the  said 


510  FORMS  16,  17,  18 

Estate  are  requested  to  make  payment,  and  those  having  claims 
to  present  the  same,  without  delay,  to 


Or  to Attorney 


17.  CERTIFICATE  OF  APPOINTMENT  OF  TRUSTEE 

WITH  SECURITY.  584. 

State  of  Pennsylvania,  Philadelphia  County,  ss: 

I  certify,  That  at  an  Orphans'  Court  for  the  County  afore- 
said, held  at  Philadelphia,  on  the day  of A. 

D.  one  thousand  nine  hundred  and before  the  Honor- 
able   ,  President,  and  his  Associate  Judges 

of  said  Court. 

Sur-petition.     The  Court  appointed  Trustee  for 

under  the  last  will  and  testament  of on 

security  being  entered  in  the  sum  of Dollars,  which 

has  been  duly  entered. 

Witness  my  hand  and  seal  of  said  Court,  this day 

of A.  D.  191 

Clerk  of  Orphans'  Court. 

Esq. 

Attorney  for  Petitioner. 

18.  CERTIFICATE  OF  APPOINTMENT   OF  GUARD- 

IAN WITHOUT  SECURITY.      599. 

State  of  Pennsylvania,  Philadelphia  County,  ss: 

I  Certify,  That  at  an  Orphans'  Court  for  the  County  afore- 
said, held  at  Philadelphia,  on  the day  of  A. 

D.  one  thousand  nine  hundred  and before  the  Honor- 
able   ,  President,  and  his  Associate  Judges 

of  said  Court. 

Sur-petition.  The  Court  appointed  Guardian  of 

minor  child  of  


FORMS  18,  19,  20  511 

Witness  my  hand  and  seal  of  said  Court,  this day 

of A.  D.  191 


Asst.  Clerk  of  Orphans'  Court. 

Esq. 

Attorney  for  Petitioner. 


19.  CERTIFICATE  OF  APPOINTMENT  OF  GUARD- 

IAN  WITH   SECURITY. 

State  of  Pennsylvania,  Philadelphia  County,  ss: 

I  Certify,  That  at  an  Orphans'  Court  for  the  County  afore- 
said, held  at  Philadelphia,  on  the day  of  A. 

D.  one  thousand  nine  hundred  and before  the  Honor- 
able   President,  and  his  Associate  Judges  of  said  Court. 

Sur-petition.  The  Court  appointed  Guardian  of 

minor  child  of  on  security  being 

entered  in  the  sum  of Dollars,  which  has  been  duly 

entered 

Witness  my  hand  and  seal  of  said  Court,  this day 

of A.  D.  191 

Asst.  Clerk  of  Orphans'  Court. 

Esq. 

Attorney  for  Petitioner. 

20.  GUARDIAN'S  INVENTORY.    606. 

In  the  Orphans'  Court  of  Philadelphia  County. 

Estate  of Minor.     Inventory. 

Commonwealth  of  Pennsylvania,  City  and  County  of  Philadel- 
phia, ss: 

being  duly  says,  that  the  above  is  a 

full,  true  and  complete  Inventory  of  the  assets  which  have  come 

into hands  as  a  Guardian  of  the  Estate  of  the  said 

minor 

and  subscribed  before  me 

this   day   of   

A.  D.  19 


-Clerk  O.  C. 


512  FORMS  21,  22 

21.    BOND  OF  GUARDIAN  OF  MINOR'S  ESTATE.    605. 

Know  all  Men  by  these  Presents,  That  we,  Are 

Held  and  Firmly  Bound  unto  the  Commonwealth  of  Pennsyl- 
vania, in  the  sum  of  -  Dollars,  lawful  money,  to  be 

paid  said  Commonwealth  of  Pennsylvania,  their  certain  Attor- 
ney or  Assigns;  to  which  payment,  well  and  truly  to  be  made, 
we  bind  ourselves  and  each  of  us,  our  Heirs,  Executors  and 

Administrators jointly  and  severally,  firmly  by  these 

presents.     Sealed  with  our  seals — dated  the  day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred 


and  

Now,  the  Condition  of  this  Obligation  is  such,     That  if  the 
above-bounded Guardian  of Minor  Child        of 

shall,  at  least  once  in  every  three  years,  and  when- 
ever required  by  the  Court,  render  a  just  and  true  account  to  the 
Orphans'  Court  of  Philadelphia  County,  according  to  the  direc- 
tions of  the  Act  of  Assembly,  in  such  case  made  and  provided, 
of  the  management  of  the  property  and  estate  of  the  said  minor 
under care,  and  shall  also  deliver  up  the  said  prop- 
erty and  estate,  agreeably  to  the  decree  and  order  of  said  Court, 
or  the  directions  of  law,  and  shall  in  all  respects  faithfully  per- 
form the  duties  of  Guardian,  then  the  above  Obligation  shall 
be  void  and  of  no  effect,  or  else  to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the 
presence  of:  (Signatures) 

(Seal) 

22.    BOND  OF  TRUSTEE  APPOINTED.    388. 

Estate  of 

Know  all  Men  by  these  Presents,  That  We, Are  Held 

and  Firmly  Bound  unto  the  Commonwealth  of  Pennsylvania,  in 
the  sum  of Dollars,  lawful  money,  to  be  paid  said  Com- 
monwealth of  Pennsylvania,  their  certain  Attorney  or  Assigns; 
to  which  payment,  well  and  truly  to  be  made,  we  bind  ourselves 
and  each  of  us,  our  Heirs,  Executors  and  Administrators 

jointly  and  severally,  firmly    by    these    presents. 

Sealed  with  our  seals — dated  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 

Whereas,  At  an  Orphans'  Court  for  the  County  of  Philadel- 
phia, held  the day  of ,  in  the  year  of  our 

Lord  one  thousand  nine  hundred  and  


FORMS  22,  23  513 

Now,  the  Condition  of  the  above  Obligation  is  such,  That  if 

the  above-bounden shall  faithfully  execute  said  trust 

and  truly  account  for  the  property  and  estate  under 

care  and  deliver  up  the  same  agreeably  to  the  provisions  of  the 
Act  of  Assembly  in  such  case  made  and  provided,  and  according 
to  the  uses  and  trusts  contained  in  the  will  of  said  decedent,  then 
the  said  Obligation  to  be  void,  or  otherwise  to  be  and  remain  in 
full  force  and  virtue. 

Sealed  and  delivered  in  the 
presence  of: 

(Signatures) 
(Seal) 

23.    BOND  OF  FIDUCIARY  ON  SALE  OF  REAL  ES- 
TATE.   192. 

Estate  of  

Know  all  Men  by  these  Presents,  That  We,  Are 

Held  and  Firmly  Bound  unto  the  Commonwealth  of  Pennsyl- 
vania in  the  sum  of  Dollars,  lawful  money  of  the 

United  States  of  America,  to  be  paid  to  the  said  Commonwealth ; 
to  which  payment,  well  and  truly  to  be  made,  we  bind  ourselves, 

our  Heirs,  Executors,  Administrators,  and  every  of 

them,  jointly  and  severally,  firmly  by  these  presents.     Sealed 

with  our  seals,  and  dated  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 

Whereas,  At  an  Orphans'  Court  for  the  County  of  Philadel- 
phia, held  on  the day  of A.  D.  192 , 

the  Court  the  above-bounded   of    the 

Real  Estate in  the  proceedings  particularly  specified, 

upon  security  being  entered  in  the  above-mentioned  sum: 

Now,  the  Condition  of  the  above  Obligation  is  such,  That  if 

the  above-bounden  as    aforesaid    shall    faithfully 

execute  the  trust  and  properly  appropriate  the  pro- 
ceeds of  such  according  to  the  trust  and  decree  of 

the  Court,  and  according  to  law,  then  this  obligation  to  be  void, 
or  else  to  be  and  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the 
presence  of: 

(Signatures) 

-^ ^— (Seal) 

33 


514  FORMS  24,  25 

24.  BOND  OF  FIDUCIARY  FOR  MISCELLANEOUS 
TRANSACTIONS  WHERE  SECURITY  IS  RE- 
QUIRED.  388. 

Estate  of 

Know  all  Men  by  these  Presents,  That  We,  ••  Are 

Held  and  Firmly  Bound  unto  the  Commonwealth  of  Pennsyl 

vania,  in  the  sum  of  —  Dollars,  lawful  money,  to  be 

paid  said  Commonwealth  of  Pennsylvania,  their  certain  Attor- 
ney or  Assigns;  to  which  payment,  well  and  truly  to  be  made 
we  bind  ourselves  and  each  of  us,  our  Heirs,  Executors  and 

Administrators, jointly  and  severally,  firmly  by  these 

presents.     Sealed  with  our  seals — dated  the day  of 

— in  the  year  of  our  Lord  one  thousand  nine  hundred 


and 

Whereas,  At  an  Orphans'  Court  for  the  County  of  Philadel- 
phia, held  the day  of —  in  the  year  of  our 

Lord  one  thousand  nine  hundred  and  

Now,  the  Condition  of  the  above  Obligation  is  such,  That  if 
the  above-bounden shall  truly  account  for  and  faith- 
fully appropriate  the  proceeds  of  the  same,  agreeably  to  the 
provisions  of  the  Act  of  Assembly  in  such  case  made  and  pro- 
vided, and  according  to  the  uses  and  trusts  contained  in  the  will 
of  said  decedent,  then  the  said  Obligation  to  be  void,  or  other- 
wise to  be  and  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the 
presence  of: 

(Signatures) 

-(Seal) 

25.    BOND  FOR  COSTS  ON  APPEAL  FROM  ORPHANS' 
COURT.    163. 

In  the  matter  of  Estate  of No. Term  191 — 

Know  all  Men  by  these  Presents,  That  We, are 

held  and  firmly  bound  unto  the  Commonwealth  of  Pennsylvania, 

in  the  sum  of1 Dollars,  lawful  money,  to  be  paid  said 

Commonwealth  of  Pennsylvania,  its  certain  Attorney  or  As- 
signs ;  to  which  payment,  well  and  truly  to  be  made,  we  bind 
ourselves  and  each  of  us,  our  Heirs,  Executors  and  Adminis- 
trators    -  jointly  and  severally,  firmly  by  these  Presents. 


FORMS  25,  26,  27  515 

Sealed  with  our  seals,  and  dated  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 

Whereas,  ha         appealed  from  the  final  decree 

of  the  Orphans'  Court  for  the  County  of   Philadelphia,  made 
on  the day  of  191  

Now,  the  Condition  of  the  above  Obligation  is  such,  That,  if 

the  said  shall  prosecute  appeal    with 

effect,  and  pay  all  costs  and  damages  awarded  by  the  Appellate 

Court  or  legally  chargeable  against  then  the  above 

Obligation  to  be  void,  or  else  to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the 
presence  of: 

(Signatures) 
(Seal) 

26.    JUSTIFICATION  BY  INDIVIDUAL  SURETIES. 

In  the  Orphans'  Court  of  Philadelphia  County. 

Estate  of  No.  Term,  19 Security 

ordered  in  $ 

Asst.  Clerk  O.  C. 

being  duly deposes  and  says: 


I.  That  he  resides  at and  is  by  occupation 


II.  That  he  is  the  owner  of < III.  The  deed  of  con- 
veyance of  which  to  him  is  recorded  in  the  office  for  recording 

deeds  for  said  County  in  Deed  Book  IV.  That  the 

title  thereto  is  in  his  own  name V.  That  the  incum- 

brances  upon  said  premises  are VI.  That  the  assessed 

value  of  said  premises  is  VII.    That  after  payment 

of  all  debts,  engagements  and  liabilities,  deponent 

believes  that  is  worth  not  less  than  $ 

and  subscribed  before  me 

this  day  of  

A.  D.  19 

Asst.  Clerk  O.  C. 


19 The  above  security  is  approved. 

27.     CITATION.     116. 

Philadelphia  County,  ss: 

The  Commonwealth  of  Pennsylvania    To  *- 


Greeting:   We  Command  You, that,  laying  aside 


516  FORMS  27,  28 

all  business  and  excuses  whatsoever,  you,  be  and 

appear  in  your  proper  person  before  the  Honorable  the  Judges 
of  our  Orphans'  Court,  at  a  Court  to  be  held  on  Friday,  the 

day  of A.  D.  192 ,  at  10  o'clock  in 

the  forenoon  to  show  cause  why and  further  abide 

the  order  of  the  Court  in  the  premises.     And  hereof  fail  not. 

Witness  the  Honorable  ,  President  Judge 

of  our  said  Court,  at  Philadelphia,  the day  of 

A.  D.  192 

Assistant  Clerk  O.  C. 

Esq. 

Attorney  for  Petitioner. 

28.     PETITION     FOR     DISTRIBUTION     OF     INTES- 
TATE'S ESTATE.    552. 

In  the  Orphans'  Court  of    Philadelphia    County,    Estate    of 
deceased.     The  petition  of  respectfully 


represents:   (a)     The  decedent  died  ,  intestate  and 

letters  of  administration  on estate  were  granted 

Decedent  was 

(State  whether  decedent  was  married  or  unmarried;  if  mar- 
ried, whether  a  husband  or  wife  survive  and  his  or  her  name, 
and  whether  the  decedent  left  children  or  issue  of  deceased 
children. ) 

(&)  The  names  of  all  persons  having  any  interest  as  heirs  or 
next  of  kin  (with  the  names  of  their  parents,  to  show  relation- 
ship if  necessary)  are  as  follows : 

Names  Relationship  Interest 

Of  age  or  not  (write  yes  or  no)  Name  of  Guardian 

or  Committee,  if  any,  and  how  appointed 

All  of  said  parties  in  interest  are  living. 

(State  exceptions,  if  any,  giving  names  and  dates  of  death 
and  the  names  of  their  executors  or  administrators,  or  the  names 
of  their  issue  as  the  same  may  be  material.) 

(c)  All  parties  having  any  interest  have  had notice 

of  the  filing  of  the  account. 


FORMS  28,  29  517 

(Insert  "actual,"  if  such  is  the  fact.) 

(d)  The  estate  is  subject  to  the  payment  of  direct 

(collateral)  inheritance  tax  to  the  State  of  Pennsylvania. 

(//  taxable,  state  whether  tax  has  been  paid.) 

(e)  All  creditors  (and  other  persons  who  have  complied  with 
Rule  II,  sec.  7),  of  whose  claims  the  accountant  ha         notice 
or  knowledge,   have   received  actual  notice  of  this   audit;  the 
amounts  of  their  claims  and  whether  or  not  they  are  admitted 
to  be  correct  are  as  follows :  

(//  too  many  for  the  space,  annex  a  list  thereof,  if  no  such 
claims,  insert  the  word  "none.") 

(If  any  creditor  or  other  claimant  has  not  received  actual 
notice,  that  fact  must  be  stated.) 

(/) 

(Here  insert  a  reference  to  all  questions  requiring  adjudica- 
tion, and  a  statement  of  any  material  facts  not  already  given. 
If  none,  insert  the  word  "none."  If  any  share  has  been  assigned 
that  fact  should  also  be  stated  here.) 

Wherefore  your  petitioner  asks  that  distribution  of  principal 
and  income  be  awarded  to  the  persons  thereunto  entitled  as  set 
forth  in  paragraph  (b)  hereof. 

And  your  petitioner  will,  etc. 

County  of  Philadelphia,  ss: 

The  above  named  petitioner  being  duly doth  depose 

and  say  that  the  facts  set  forth  in  the  foregoing  petition  are 
true  to  the  best  of  h  knowledge  and  belief. 

to  and  subscribed  before  me  this day  of 


192- 


29.     PETITION  FOR  DISTRIBUTION  UNDER  A  WILL. 
552. 

In  the  Orphans'  Court  of  Philadelphia    County.      Estate    of 
deceased. 


The  petition  of  respectfully  represents: 

(a)  The  decedent  died ,  having  made last 

will  duly  probated  ,  on  which  the  present  letters  were 

granted ,  and  leaving  to  survive . 

(State  whether  a  husband  or  wife  survived  and,  if  so,  his  or 
her  name,  and  whether  he  or  she  has  elected  to  take  under  or 
against  the  will  according  to  section  23  of  the  Wills  Act  of 


518  FORMS  29 

and  if  such  an  election  has  been  made,  state  whether  it  has  been 
filed  and  furnish  a  copy;  state  also  whether  or  not  the  decedent 
left  issue  and  their  names,  when  material.) 

(b)  The  names  of  all  legatees  and  the  amounts  and  character 
of  their  legacies   (except  such  as  have  been  revoked)   and  the 
names  of  the  residuary  legatees  and  the  nature  of  their  interests 
are  as  follows: 

Names  -  Relationship Interest 

Of  age  or  not  (write  yes  or  no)  Name  of  Guardian 

or  Committee,  if  any,  and  how  appointed  

All  of  said  parties  in  interest  are  living. 

(State  exceptions,  if  any,  giving  names  and  dates  of  death 
and  the  names  of  their  executors  or  administrators,  or  the  names 
of  their  issue  as  the  same  may  be  material.) 

(c)  All  parties  having  either  vested  or    contingent    interests 
have  had  notice  of  the  filing  of  the  account. 

(Insert  "actual"  if  suck  is  the  fact.) 

(d)  The  decedent  did  marry  after  the  execution  of  the 
will  and  codicils  (if  any),  and  there  were          children  born  to 
decedent  thereafter. 

(Insert  "not"  and  "no"  if  such  are  the  facts  and  names  and 
dates  of  after  born  children,  if  any.) 

(e)  The  estate  is  subject  to  the  payment  of  direct  or 
collateral  inheritance  tax  to  the  State  of  Pennsylvania. 

(//  taxable,  state  whether  tax  has  been  paid.) 

(f)  All  creditors  (and  other  persons  who  have  complied  with 
Rule  II,  sec.  7),  of  whose  claims  the  accountant  ha         notice 
or  knowledge,  have  received  actual  notice  of  this    audit;    the 
amounts  of  their  claims  and  whether  or  not  they  are  admitted 
to  be  correct  are  as  follows:  

(//  too  many  for  the  space,  annex  a  list  thereof;  if  no  such 
claims,  insert  the  word  "none."  If  any  creditor  or  other  claimant 
has  not  received  actual  notice,  that  fact  must  be  stated.) 

(9) 

(Here  insert  or  attach  as  anl  exhibit  a  copy  of  the  parts  of  the 
will  which  require  interpretation  by  the  Court,  if  any;  a  refer- 
ence to  any  questions  requiring  adjudication,  and  a  statement  of 


FORMS  29,  30  519 

any  material  facts  not  already  given.  If  none,  insert  the  word 
"none."  If  any  share  has  been  assigned,  or  attached,  state  the 
fact.) 

Wherefore  your  petitioner  asks  that  distribution  be  awarded 
to  the  persons  thereunto  entitled  and  suggests  that  the  distribu- 
tive shares  of  principal  and  income  are  as  follows:  (residuary 
shares  being  stated  in  proportions  but  not  amounts.) 

(//  the  distribution  of  income  is  different  from  that  of  prin- 
cipal, state  the  fact.) 

And  your  petitioner  will,  etc. 

County  of  Philadelphia,  ss: 

The  above  named  petitioner  being  duly doth  depose 

and  say  that  the  facts  set  forth  in  the  foregoing  petition  are  true 
to  the  best  of  h  knowledge  and  belief. 

to  and  subscribed  before  me  this day  of 


,  192 

30.    PETITION   FOR   DISTRIBUTION   OF   A   TRUST 
ESTATE.    552. 

In  the   Orphans'   Court  of  Philadelphia  County.     Estate  of 
deceased. 


Sur  trust  for  — 


The  petition  of respectfully  represents: 

(a)  The  decedent  died  having  made  his  last  will 

probated  

The  trust  arises  under  the  will  as  follows: 

(Set  forth  a  copy  of  that  part  of  the  will  under  which  the 
trust  arises,  and  a  reference  to  any  prior  adjudication  of  the 
Court  thereon.) 

(b)  The  reason  or  purpose  of  the  filing  of  the  account  is 

and  the  names  of  all  persons  having  any  interest, 

vested  or  contingent,  in  the  trust,  with  the  nature  of  their  in- 
terests, are  as  follows:  

(//  any  are  minors,  state  the  fact  and  whether  they  have  guard- 
ians, and  how  appointed.) 

All  of  said  parties  in  interest  have  received  actual  notice  of 
this  audit. 

(State  exceptions,  if  any.) 

(c)  The  fund  now  before  the  court  is          subject  to  the  pay- 
ment of  collateral  inheritance  tax  to  the  State  of  Pennsylvania. 


520  FORMS  30,  31 

(//  taxable,  state  whether  tax  has  been  paid.) 

(d) 

(Here  insert  a  reference  to  all  questions  requiring  adjudica- 
tion, and  a  statement  of  any  material  facts  not  already  given. 
If  none,  insert  the  word  "none."  If  any  share  has  been  assigned 
that  fact  should  also  be  stated  here.) 

Wherefore  your  petitioner  asks  that  distribution  be  awarded 
in  the  way  and  manner  directed  by  the  will  and  suggests  that 
the  balances  of  principal  and  income  should  be  awarded  re- 
spectively as  follows:  (awards  being  stated  in  proportions  but 
not  amounts.) 

And  your  petitioner  will,  etc. 

County  of  Philadelphia,  ss: 

The  above  named  petitioner  being  duly doth  depose 

and  say  that  the  facts  set  forth  in  the  foregoing  petition  are  true 
to  the  best  of  h  knowledge  and  belief. 

to  and  subscribed  before  me  this day  of 


-,  192- 


31.    AFFIDAVIT  OF  DEATH  TESTATE. 

Deceased. 

State  of  Pennsylvania,  Allegheny  County,  ss: 

Personally  came  before  me, Register  of  Wills,  etc., 

in  and  for  said  County  and  upon  solemn 

oath  did  say,  that late  of died  on  the 

day  of  A.  D.  19 at M.,  to  the  best  of 

knowledge  and  belief,  testate. 

Sworn  and  subscribed  before  me  this  day  of  — 

A.  D.  19 

Register. 

(Signatures) 

State  of  Pennsylvania,  Allegheny  County,  ss: 

I,  ,  Register  of  Wills,  etc.,  in  and  for  the 

County  aforesaid,  do  hereby  certify  the  above  to  be  a  true  copy 

of  the  affidavit  of  death  in  the  Estate  of deceased,  as 

the  same  is  of  record  in  Record  of  Deaths,  Vol.  page 


Witness  my  hand  and  seal  of  said  office,  this day  of 

A.  D.  19 

Register. 


FORMS  32,  33,  34  521 

32.    CITATION  TO  PRODUCE  WILL.    267. 

Commonwealth  of  Pennsylvania,  Allegheny  County,  ss: 
To ,  at  the  instance  of by  h        Attorney, 


You  are  hereby  cited  to  be  and  appear  before  me,  

Register  for  the  Probate  of  Wills,  granting  Letters  of  Ad- 
ministration, etc.,  in  and  for  said  County,  on  or  before , 

the day  of ,  191 ,  at  my  office,  at  Pitts- 
burgh, then  and  there  to  produce  for  probate  the  paper  writing 

alleged  to  be  the  last  Will  and  Testament  of ,  deceased. 

and  alleged  to  be  in  your  possession  or  control. 

Given  under  my  hand  and  seal  of  office,  at  Pittsburgh,  this 

day  of A.  D.  191 

Register. 

33.  SUBPOENA  TO  WITNESS.    268. 

Allegheny  County,  ss: 

The  Commonwealth  of  Pennsylvania,  to  Estate  of  

Deceased.     In  re  

(Signatures) 

Greeting : 

We  Command  You,  That,  laying  aside  all  business  and  ex- 
cuses whatsoever,  you,  and  each  of  you,  be  and  appear  in  your 
proper  person  before  our  Register  of  Wills  at  Pittsburgh,  at 
our  Register  of  Wills'  Office,  in  and  for  the  County  aforesaid 

to  testify  all  and  singular  these  things  which  you  shall 

know  in  the  above  entitled  Estate  now  depending  in  our  said 
Register's  Office,  then  and  there  to  be  tried,  and  herein  fail  not, 
under  the  penalty  of  One  Hundred  Pounds. 

Witness,  My  hand  and  seal  of  office  at  Pittsburgh,  this 

day  of  A.  D.  19 

Register  of  Wills. 

34.  COMMISSION     AND     DEPOSITION     OF     WIT- 

NESSES TO  WILL.     269. 

State  of  Pennsylvania,  Allegheny  County,  ss: 

To  -       Esq.,  of  • 

Greeting:  You  are  hereby  authorized  and  empowered  to 
cause  to  appear  before  you  the  subscribing  witnesses 


522  FORMS  34 

to  the  instrument  of  writing  hereto  attached,  purporting  to  be 

the  last  will  and  testament  of deceased,  and  on 

oath  or  affirmation  to  propound  to  the  following  in- 
terrogatories : 

First.    Are  you  a  subscribing  witness  to  this  paper  (exhibit- 
ing it),  purporting  to  be  the  last  will  and  testament  of 

deceased  ? 

Second.    Did  you  see  the  testat          sign  name  at 

the  end  thereof  ? 

Third.   Did  you  hear declare  it  to  be last 

will  and  testament? 

Fourth.   Do  you  believe  at  the  time  of  so  doing was 

of  sound  mind  and  memory? 

Fifth.    Was  it  at request  and  in presence 

that  you  subscribed  your  name  as  a  witness  thereto? 

And  having  so  done,  you  are  to  reduce  the  answers  of  the 

said  witness  to  writing  and  certify  the  same  under 

your  hand  and  seal,  and  forward  the  same  to  the  Register's 
office  at  Pittsburgh,  Pennsylvania. 

Given  under  my  hand  and  seal  of  said  office,  at  Pittsburgh, 

this  -  day  of  A.  D.  191 

Register. 

To Esq.,  Register  of  Allegheny  County,  Pennsyl- 
vania : 

Pursuant  to  the  authority  vested  in  me  by  your  commission, 
to  me  directed,  for  the  taking  of  testimony  in  the  matter  of  the 
probate  of  a  certain  instrument  of  writing,  purporting  to  be  the 

last  will  and  testament  of  ,  deceased,  I,  ,  do 

hereby  certify  that  I  caused the  witness    in  said  commis- 
sion named,  to  appear  before  me  at ,  on 191 , 

and  having  exhibited  to the    said    instrument    of 

writing,  did  propound  to  the  interrogatories  annexed 

to  said  commission,  to  which  the  said  witness         having  been 
first  duly  sworn,  made  answer  as  follows: 

answers  to  the  first  interrogatory :  to  the 

second  interrogatory:  ;    to    the    third    interrogatory: 

;  to  the  fourth  interrogatory:  ;  to  the  fifth 

interrogatory ;    (Witness  sign  here)  ;     answers  to  the 

first   interrogatory:   ;    to    the    second    interrogatory: 

;  to  the  third  interrogatory:  ;  to  the  fourth 


FORMS  34,  35  523 

interrogatory:  ;  to  the  fifth  interrogatory:  ; 

(Witness  sign  here.) 

And  I  do  further  certify  that  the  foregoing  answers  of  the 
said  witness          to  the  said  interrogatories  were  by  me  reduced 

to  writing  in  presence  and  were  by  said  witness 

signed  before  me  the  day  and  year  aforesaid. 

Witness  my  hand  and  seal  this day  of  A. 

D.  191— 

Co  mmissio  n  er. 

Now,  A.  D.  191 ,  the  testimony    of    the   above 

named  witnesses  being  sufficient,  I  do  hereby  admit  the  fore- 
going Will  to  Probate,  and  order  the  same  to  be  recorded  as 
such. 

Given  under  my  hand  the  above  date. 

Register. 

35.     PETITION  FOR  PROBATE  AND  LETTERS  TES- 
TAMENTARY.    358. 

Application  for  Probate  of  Will  of late  of 

deceased,  and  Grant  of  Letters  Testamentary. 

Register's  Office,  Allegheny  County,  jj; 

Before  the  Register  of  Allegheny  County  personally  appeared 
who,  being  sworn,  say      that  over  twenty- 


one  years  of  age  and  that  the  executor        appointed 

in  the  last  will  and  testament  of  deceased  dated 

That  said  testator,  being  at  the  time  a  resident  of Alle- 
gheny County,  and  a  citizen  of  died  at  on 

A.  D.  at M.,  possessed  of  personal 

estate  to  the  value  of  $ and  of  real  estate   (less  en- 
cumbrances) to  the  value  of  $ as    nearly    as    can   be 

ascertained,  situate  in 

Act  No.  25,  of  1921,  approved  March  24,  1921,  amends 
Clause  (d)  of  Section  2,  of  the  Act  of  June  7,  1917,  P.  L.  447 
(the  Fiduciaries  Act),  by  adding  thereto  the  following:  "In 
the  case  of  applications  for  letters  testamentary,  such  applica- 
tions shall  set  forth  whether  the  testator  has  married  and  whether 
any  children  have  been  born  to  such  testator  since  the  execution 
of  the  will  offered  for  probate." 


524  FORMS  35,  36 

That  said  testa  has married  and children 

have  been  born  to  said  testa  since  the  execution  of  the  will 
offered  for  probate. 

That  deponent  (whose  P.  O.  address  is )  resident 

of  Pennsylvania,  and  respectfully  petition  the  Register  to 
admit  said  will  to  probate,  and  to  grant  letters  testamentary 
thereon  to 

Sworn    and     subscribed     before    me"] 
A.  D.,  192 I 


-Register.   1  (Signatures) 


Allegheny  County,  ss: 

I, do  swear  that,  as  I  verily  believe,  the  above  named 

died  on  the day  of A.  D. 


at  M. ;  and  do  further  swear  that  as  the  executor  of 

the  last  will  and  testament  of  said  decedent will  well 

and  truly  administer  the  goods  and  chattels,  rights  and  credits 
of  said  decedent  according  to  law,  and  also  will  diligently  and 
faithfully  regard  and  well  and  truly  comply  with  the  provisions 
of  the  law  relating  to  inheritance  tax. 

Sworn  and  subscribed  before  me  this^ 

day  of  ,  A.  D.  192 , 

and   letters    testamentary    granted    unto 


(Signatures) 
•Register. 


36.     OATH  OF  SUBSCRIBING  WITNESSES  TO  WILL. 
215. 

State  of  Pennsylvania,  Allegheny  County,  ss: 

Be  it  known,  That  on  the  day  of  A.  D. 

19 before  me,  ,  Register  of  Wills,  etc.,  in 

and  for  the  County  aforesaid,  came  the  subscribing 

witnesses  to  the  foregoing  instrument  of  writing,  purporting  to 

be  the  last  will  and  testament  of  deceased, 

and  on  their  solemn  oath  did  depose  and  say  that  they  were 

present  and  did  see  and  hear the  testa  therein 

named,  sign seal,  publish  and  declare  the  same  as  and 

for  last  Will  and  Testament,  and  at  the  time  of  so 

doing was  of  sound  mind  and  memory,  to  the  best  of 


FORMS  36,  37,  38  525 

knowledge  and  belief,  and  at request  and  in 

—  presence subscribed names  as 


witnesses  hereunto 

Sworn  and  subscribed  before  me 
the  above  date. 


-Register.  \  (Signatures) 


Now,  A.  D.   19 ,  the  testimony    of    the    above 

named  witnesses  being  sufficient,  I  do  hereby  admit  the  fore- 
going will  to  probate,  and  order  the  same  to  be  recorded  as  such 

Given  under  my  hand  the  above  date. 

Register. 

37.  OATH  TO  DECEDENT'S  SIGNATURE  WHERE  NO 

WITNESSES.     215. 

State  of  Pennsylvania,  Allegheny  County,  ss: 

Be  it  Known,  That  on  the day  of  A.  D. 

19 before  me, ,  Register  of  Wills,  etc.,  in  and 

for  the  County  aforesaid,  came  and    on    

solemn  oath  did  depose  and  say  that     he  w        well  acquainted 

with  the  foregoing  instrument  of  writing  purporting 

to  be the  last  Will  and  Testament  of and  fami- 
liar with handwriting  and  signature,  and  that  the  sig- 
nature of  to  the  said  writing  is  in own 

proper  handwriting,  as  verily  believe.  

Sworn  and  subscribed  before  me^ 

the  above  date.  > 

Register.  J 

Now,  A.   D.    19 ,  the  testimony  of  the  above 

named  witnesses  being  sufficient,  I  do  hereby  admit  the  fore- 
going Will  to  Probate,  and  order  the  same  to  be  recorded  as 
such. 

Given  under  my  hand  the  above  date. 

Register. 

38.  CITATION   TO    SHOW    CAUSE   WHY    LETTERS 

SHOULD  NOT  ISSUE. 
Allegheny  County,  ss: 

Commonwealth  of  Pennsylvania. 

To at  the  instance  of by  his  Attorney 

You  ,are  hereby  cited  to  be  and  appear  before  me, , 


526  FORMS  38,  39,  40 

Register  of  the  Probate  of  Wills,  granting  Letters  of  Administra- 
tion, &c.,  in  and  for  said  County,  on  or  before the 

day  of 19 ,  at  my  office,  at  Pittsburgh,  then  and  there 

to  take  out  Letters  of  Administration  on  the  estate  of  said 

deceased,  or  show  cause,  if  any,  why  said  letters  should  not  jssue 

to  said or  some  other  fit  person. 

Given  under  my  hand  and  seal  of  office,  at  Pittsburgh,  this 

day  of A.  D.  19 

Register. 

39.     RENUNCIATION    OF    RIGHT   TO   ADMINISTER. 
357- 

Estate  of Deceased. 

The  undersigned and  heirs  of  late  of 

deceased,  hereby  renounce  right  to  administer  on  said 

estate  and  respectfully  ask  that  Letters  be  issued  to 


Signed  in  presence  of: 

(  Signatures  ) 

40.    PETITION    FOR    LETTERS     OF    ADMINISTRA- 
TION.   358. 

Application  for  Letters  of  Administration  on  the  Estate  of 

late  of deceased. 

Register's  Office,  Allegheny  County,  ss: 

Before  the  Register  of  Allegheny  County,  personally  appeared 

who,  being  sworn,  says  that being  at  the  time 

a  resident  of Allegheny  County,  and  a  citizen  of 

died  intestate,  at on  A.  D.  at 

M.,  possessed  of  personal  estate  to  the  value  of  $ and 

of  real  estate  (less  encumbrances)  to  the  value  of  $ as 

nearly  as  can  be  ascertained,  situate  in That  decedent's 

heirs  and  next  of  kin  are  as  follows: 

Relationship Residence 

That  deponent,  whose  P.  O.  address  is  is  a  citizen 

of  the  United  States  and  a  resident  of  Pennsylvania,  and  re- 
spectfully applies  for  Letters  of  Administration  upon  the  Estate 
of  said  decedent. 

Sworn  and  subscribed  before  me  ~\ 

A.  D.  19—  y  — 

Register.)  (Signatures) 


FORMS  40,  41  527 

Register's  Office,  Allegheny  County,  ss: 

192 ,  before  me,  the  Register,  personally  appeared 

about  to  become  a  surety  in  the  sum  of  $ on 

the  administration  bond  in  the  above  entitled  estate,  who,  being 

sworn,  says  that  he  resides  at ,  Allegheny  County,  and  is  by 

occupation  a ;  that  he  is  the  owner  of  real  estate,  the  title 

to  which  is  in  his  own  name  and  duly  recorded,  situate  in 

Allegheny  County,  worth,  above,  encumbrances,  $ and 

upward ;  and  that  he  is  worth  thd  amount  expressed  in  said  bond 
over  and  above  his  just  debts  and  liabilities. 

And  on  the  same  day  there  also  personally  appeared 

likewise  about  to  become  a  surety  on  said  administration  bond, 

who,  being  sworn,  says  that  he  resides  at  Allegheny 

County,  and  is  by  occupation  a ;  that  he  is  the  owner  of 

real  estate,  the  title  to  which  is  in  his  own  name  and  duly  recorded, 

situate  in Allegheny  County,  worth  above  incumbrances, 

$ and  upward,  and  that  he  is  worth  the  amount  expressed 

in  said  bond,  over  and  above  his  just  debts  and  liabilities. 

Sworn  and  subscribed  before  me*\ 
the  day  and  year  aforesaid.  > 


-Register.  (Signatures) 


41.     BOND  AND  OATH  OF  ADMINISTRATOR.     381-3. 

Estate!  of late  of deceased. 

Know  all  Men  by  these  Presents,  That  we all  of 

Allegheny  County,  Pennsylvania,  are  held  and  firmly  bound  unto 

the  Commonwealth  of  Pennsylvania  in  the  sum  of dollars, 

to  be  paid  to  the  said  Commonwealth,  to  which  payment,  well  and 
truly  to  be  made,  we  do  bind  ourselves,  jointly  and  severally,  for 

and  in  the  whole,  our  heirs,  executors  and  administrators 

and  each  and  every  of  them,  firmly  by  these  presents.  Sealed 

with  our  seals  and  dated  the day  of A.  D.  one 

thousand  nine  hundred  and 

The  Condition  of  this  Obligation  is,  That  if  the  above  bounden 
administrator  of  all  and  singular  the  goods,  chattels 


and  credits  of deceased,  do  make  or  cause  to  be  made  a 

true  and  perfect  inventory  of  all  and  singular  the  goods,  chattels 


528  FORMS  41 

and  credits  of  said  deceased  which  have  come  or  shall  come  to  the 
hands,  possession  or  knowledge  of  the  said  administrator  or 
into  the  hands  and  possession  of  any  other  person  or  persons  for 
said  administrator  and  the  same,  so  made,  do  exhibit,  or  cause 
to  be  exhibited,  into  the  Register's  Office,  in  the  County  of  Alle- 
gheny, within  thirty  days  from  the  date  hereof:  and  the  same 
goods,  chattels  and  credits,  and  all  other  the  goods,  chattels  and 
credits  of  the  said  deceased  at  the  time  of  decedent's  death,  which 
at  any  time  after  shall  come  to  the  hands  or  possession  of  the  said 
administrator  or  into  the  hands  and  possession  of  any  other 
person  or  persons  for  said  administrator  do  well  and  truly  ad- 
minister according  to  law ;  and  further,  do  make  or  cause  to  be 
made  a  just  and  true  account  of  said  administration  in  one  year 
from  the  date  hereof,  or  when  thereunto  legally  required,  and  all 
the  rest  and  residue  of  the  said  goods,  chattels  and  credits  which 
shall  be  found  remaining  upon  the  said  administrator's  account, 
the  same  being  first  examined  and  allowed  by  the  Orphans'  Court 
of  Allegheny  County,  shall  deliver  and  pay  unto  such  person  or 
persons  as  the  said  Orphans'  Court,  by  their  decree  or  sentence 
pursuant  to  law,  shall  limit  and  appoint,  and  shall  well  and  truly 
comply  with  the  laws  of  this  Commonwealth  relating  to  collateral 
inheritance ;  and  if  it  shall  hereafter  appear  that  any  last  Will  and 
Testament  was  made  by  the  said  deceased,  and  the  same  shall  be 
proved  according  to  law,  if  the  said  administrator  being  there- 
unto required  to  surrender  the  said  letters  of  administration  into 
the  Register's  Office  aforesaid,  then  this  obligation  to  be  void, 
otherwise  to  remain  in  full  force. 
Sealed  and  delivered  in  the  presence 

of . 

(Signatures) 

(Seal) 


Allegheny  County,  ss: 

I, being  duly  sworn,  do  say  that the  above 

named  decedent,  died  intestate  on  the day  of  

A.  D.  19 at M.,  as  I  verily  believe.  And  I  do  fur- 
ther swear  that,  as  the  administrator  of  the  estate  of  said  dece- 
dent, I,  will  well  and  truly  administer  the  goods  and 

chattels,  rights  and  credits  of  said  deceased,  according  to  law,  and 


FORMS  41,  42  529 

also  will  diligently  and  faithfully  regard  and  well  and  truly  com- 
ply with  the  provisions  of  the  law  relating  to  collateral  inher- 
itances. 

Sworn  and  subscribed  before  me  this 

day  of  19 

and    letters    of    administration    granted 
unto  . 

R  egister. 

42.    PETITION  FOR  LETTERS  OF  ADMINISTRATION 
C.  T.  A.    358-9. 

In  Re- Probate  of  the  Will  of late  of deceased, 

and  Grant  Letters  of  Administration,  cum  testamento  annexo. 
Register's  Office,  Allegheny  County,  ss: 

Before  the  Register  of  Allegheny  County,  personally  appeared 

who,  being  duly  sworn,  says  that being  at  the 

time;  a  resident  of ,  Allegheny  County,  and  a  citizen  of 

,  died  at  ,  on  ,  A.  D.  ,  at 

M.,  having  first  made last   will   and  testament, 

dated  ,  wherein  he  appointed executor,  which  ex- 
ecutor has  since . 

That  testator  was  possessed  of  personal  estate  to  the  value  of 

$ ,  and  of  real  estate  (less  encumbrances)  to  the  value  of 

$ ,  as  nearly  as  can  be  ascertained,  situate  in  

That  testator's  heirs  and  next  of  kin  are  as  follows : 

Relationship Residence 

That  said  testa  has married  and children 

have  been  born  to  said  testa  since  the  execution  of  the  Will 
offered  for  probate. 

That  deponent,  whose  P.  O.  address  is is  a  resident 

of  Pennsylvania,  and  respectfully  petitions  the  Register  to  admit 
said  will  to  probate,  and  to  grant  letters  of  administration  cum 
testamento  annexo  on  said  estate  to 

Sworn  and  subscribed  before  me ] 

A.  D.  192 > 


-Register. 


Allegheny  County,  ss: 

I, do  swear  that,  as  I  verily  believe,  the  above  named 

died  on  the day  of A.  D. at 


34 


530  FORMS  42,  43 

M. ;  and  I  do  further  swear  that  as  the  Administrator  cum 

testamento  annexe  of  the  estate  of  the  said  decedent will 

well  and  truly  administer  the  goods  and  chattels,  rights  and 
credits  of  said  deceased  according  to  law,  and  also  will  diligently 
and  faithfully  regard  and  well  and  truly  comply  with  the  provi- 
sions of  the  law  relating  to  inheritance  tax. 

Sworn  and  subscribed  before  me  this 

day  of A.  D.  192 

and  letters  of  Administration  cum  testa- 
mento annexo  granted  unto (Signature.) 


-Register. 


43.     OATH  OF  ADMINISTRATOR  C.  T.  A.    382. 

Allegheny  County,  ss: 

I, do  swear  that,  as  I  verily  believe,  the  above  named 

died  on  the day  of A.  D.  at 

M. ;  and  I  do  further  swear  that,  as  the  administrator  cum 

testamento  annexo  of  the  estate  of  the  said  decedent 

will  well  and  truly  administer  the  goods  and  chattels,  rights  and 
credits  of  said  deceased,  according  to  law,  and  also  will  diligently 
and  faithfully  regard  and  well  and  truly  comply  with  the  provi- 
sions of  the  law  relating  to  collateral  inheritances. 

Sworn  and  subscribed  before    me    this 

day  of A.  D.  19 ,  and 

letters  of  administration  cum  testamento 
annexo  granted  unto 


-Register. 


(Signature.) 


State  of  Pennsylvania,  Allegheny  County,  ss: 

I,  William  Conner,  Register  of  Wills  in  and  for  said  County, 
do  hereby  certify  the  foregoing  to  be  a  true  and  correct  copy  of 
the  Affidavit  of  Death  and  of  the  Oath  of  office  of  the  Adminis 

trator  c.  t.  a.  in  the  estate  of deceased,  so  full  and  entire 

as  the  same  remain  of  record  in  my  office;  and  that  Letters  of 

Administration  c.  t.  a.  on  said  estate  were  granted  unto on 

the day  of A.  D. 

Given  under  my  hand  and  seal  of  office,    at    Pittsburgh,    this 

day  of A.  D.  19 

Register. 


FORMS  44  531 

44.     BOND  OF  ADMINISTRATOR  C.  T.  A.    383. 

Know  all  Men  by  These  Presents,  That  we all  of 

Allegheny  County,  Pennsylvania,  are  held  and  firmly  bound  unto 

the  Commonwealth  of  Pennsylvania,  in  the  sum  of  

Dollars,  to  be  paid  to  the  said  Commonwealth,  to  which  payment, 
well  and  truly  to  be  made,  we  do  bind  ourselves,  jointly  and  sev- 
erally for  and  in  the  whole,  our  heirs,  executors  and  adminis- 
trators, and  each  and  every  of  them,  firmly  by  these  presents. 

Sealed  with  outi  seals  and  dated  the day  of A.  D. 

nineteen  hundred  and 

The  Condition  of  this  Obligation  is,  That  if  the  above  bounden 
administrator cum  testamento  annexe  of  all 


and  singular  the  goods,  chattels  and  credits  of deceased, 

do  make,  or  caused  to  be  made,  a  true  and  perfect  inventory  of 
all  and  singular  the  goods,  chattels  and  credits  of  said  deceased, 
which  have  come  or  shall  come  to  the  hands,  possession  or  knowl- 
edgt  of  the  said  administrator  or  into  the  hands  and  possession 
of  any  other  person  or  persons  for  said  administrator  ,  and  the 
same  so  made  do  exhibit,  or  cause  to  be  exhibited,  into  the  Reg- 
ister's Office,  in  the  County  of  Allegheny,  within  thirty  days  from 
the  date  hereof ;  and  the  same  goods,  chattels  and  credits,  and  all 
other  goods,  chattels  and  credits  of  the  said  deceased  at  the  time 
of  death,  which  at  any  time  after  shall  come  to  the  hands  or  pos- 
session of  the  Administrator  or  in  the  hands  and  posses- 
sion of  any  other  person  or  persons  for  said  administrator,  do 
well  and  truly  administer  according  to  law ;  and  further,  do  make, 
or  cause  to  be  made,  a  just  and  true  account  of  said  administra- 
tion, in  six  months  from  the  date  hereof,  or  when  thereunto 
legally  required,  and  all  the  rest  and  residue  of  the  said  goods, 
chattels  and  credits,  together  with  the  proceeds  of  any  sales  of 
real  estate  the  said  administrator  may  make  under  the  will  of 
decedent,  which  shall  be  found  remaining  upon  the  said  admin- 
istrator's account,  the  same  being  first  examined  and  allowed  by 
the  Orphans'  Court  of  Allegheny  County,  shall  deliver  and  pay 
unto  such  person  or  persons  as  the  said  Orphans*  Court,  by  their 
decree  or  sentence,  pursuant  to  law,  shall  limit  and  appoint,  and 
shall  well  and  truly  comply  with  the  laws  of  this  Commonwealth 
relating  to  inheritance  tax;  and  if  it  shall  hereafter  appear  that 
any  Will  and  Testament  was  made  by  the  said  deceased,  and  the 
same  shall  be  approved  according  to  law,  if  the  said  adminis- 


532  FORMS  44,  45 

trator      ,  being  thereto  required,  do  surrender  the  said  letters  of 
administration  into  the  Register's  Office  aforesaid,  then  this  obli- 
gation to  be  void,  otherwise  to  remain  in  full  force. 
Sealed  and  delivered  in  the  presence  of : 


(Signatures.) 
Register's  Office,  Allegheny  County,  ss: 

-19 ,  before  the  Register  personally  appeared 


about  to  become  a  surety  in  the  sum  of ,  on  the  admin- 
istration bond  in  the  above-entitled  estate,  who,  being  sworn,  says 

that  he  resides  at ,  Allegheny  County,  and  is  by  occupation 

a ;  that  he  is  the  owner  of  real  estate,  the  title  to  which 

is  in  his  own  name  and  duly  recorded,  situate  in County. 

worth,  above  incumbrances,  $ and  upward,  and  that  he  is 

worth  the  amount  expressed  in  said  bond  over  and  above  his 
just  debts  and  liabilities. 

And  on  the  same  day  there  also  personally  appeared  , 

likewise  about  to  become  a  surety  on  said  administration  bond, 

who,  being  sworn,  says  that  he  resides  at  ,  Allegheny 

County,  and  is  by  occupation  a ;  that  he  is  the  owner  of 

real  estate,  the  title  to  which  is  in  his  own  name  and  duly  recorded, 

situate  in ,  Allegheny  County,  worth,  above  incumbrances, 

$ and  upward,  and  that  he  is  worth  the  amount  expressed 

in  said  bond  over  and  above  his  just  debts  and  liabilities. 

Sworn  and  subscribed  before  me  the  day 
and  year  aforesaid. 


-Register.  J  (Signatures.) 


45.     BOND  OF  NON-RESIDENT  EXECUTOR.     384. 

Know  all  Men  by  these  Presents,  That  we all  of 

Allegheny  County,  Pennsylvania,  are  held  and  firmly  bound  unto 

the  Commonwealth  of  Pennsylvania,  in  the  sum  of  

Dollars,  to  be  paid  to  the  said  Commowealth,  to  which  payment 
well  and  truly  to  be  made,  we  do  bind  ourselves,  jointly  and  sev- 
erally, for  and  in  the  whole,  our  heirs,  executors  and  adminis- 
trators, and  each  and  every  of  them,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the day  of • 

A.  D.  nineteen  hundred  and 


FORMS  45  533 

The  Condition  of  the  Obligation  is,  That  if  the  said 

executor  of  the  last  will  and  testament  of  deceased, 

shall  make  a  true  and  perfect  inventory  of  all  and  singular  the 
goods,  chattels  and  credits  of  the  said  deceased,  being  within  this 
Commonwealth,  which  have  come  or  shall  come  to  his  hands,  pos- 
session or  knowledge,  or  into  the  hands  and  possession  of  any 
person  for  him,  and  the  same  so  made  to  exhibit  into  the 
office  of  the  Register  of  the  County  of  Allegheny  within 
thirty  days  from  the  date  hereof,  and  the  same  goods  do 
well  and  truly  administer  according  to  law,  and  make  a  just  and 
true  account  of  all  his  actings  and  doings  therein,  in  six  months 
from  the  date  hereof,  or  when  thereunto  lawfully  required,  and 
shall  well  and  truly  comply  with  the  laws  of  this  Common- 
wealth relating  to  Collateral  Inheritances  and  in  all  other  respects 
with  the  laws  of  this  Commonwealth  relating  to  his  duty  as 
Executor,  then  this  obligation  to  be  void,  otherwise  of  force  and 
effect. 

Sealed  and  delivered  in  the  presence  of : 

(Seal) 

(Signatures.) 


Register's  Office,  Allegheny  County,  ss: 

19 ,  before  the  Register  personally  appeared 


about  to  become  a  surety  in  the  sum  of ,  on  the  admin- 
istration bond  in  the  above-entitled  estate,  who,  being  sworn,  says 

that  he  resides  at ,  Allegheny  County,  and  is  by  occupation 

a ;  that  he  is  the  owner  of  real  estate,  the  title  to  which 

is  in  his  own  name  and  duly  recorded,  situate  in County, 

worth,  above  incumbrances,  $ and  upward,  and  that  he  is 

worth  the  amount  expressed  in  said  bond  over  and  above  his 
just  debts  and  liabilities. 

And  on  the  same  day  there  also  personally  appeared  , 

likewise  about  to  become  a  surety  on  said  administration  bond, 

who,  being  sworn,  says  that  he  resides  at  ,  Allegheny 

County,  and  is  by  occupation  a ;  that  he  is  the  owner  of 

real  estate,  the  title  to  which  is  in  his  own  name  and  duly  recorded, 
situate  in ,  Allegheny  County,  worth,  above  incumbrances, 


534  FORMS  45,  46,  47 

$ and  upward,  and  that  he  is  worth  the  amount  expressed 

in  said  bond  over  and  above  his  just  debts  and  liabilities. 

Sworn  and  subscribed  before  me  the  day 
and  year  aforesaid. 


-Register.          (Signatures.) 


46.     PETITON   FOR  PROBATE  OF  FOREIGN   WILL. 
266. 

In  Re  Probate  of  the  Authenticated  Copy  of  the  Will  of 

late  of deceased.. 

Register's  Office,  Allegheny  County,  ss: 

Before  the  Register  of  Allegheny  County,  personally  appeared 
who,  being  duly  sworn,  says  that being  at  the 


time  a  resident  of County  and  citizen  of died 

at on A.  D. at M.,  having  first 

made last  will  and  testament,  dated 

That  testator  was  possessed  of  personal  estate  to  the  value  of 

$ ,  and  of  real  estate  (less  encumbrances)  to  the  value  of 

$ as  nearly  as  can  be  ascertained,  situate  in 

That  testator's  heirs  and  next  of  kin  are  as  follows : 

Relationship Residence 

That  deponent,  whose  P.  O.  address  is is  a  resident 

of  Pennsylvania,  and  respectfully  petitions  the  Register  to  admit 
said  will  to  probate. 

Sworn  and  subscribed  before  me 
A.  D.,  19 


-Register.    \    (Signature.) 


47.     CERTIFICATE  OF  FILING  FOREIGN  WILL.    592. 

State  of  Pennsylvania,  Allegheny  County,  ss: 

I,  ,  Register  of  Wills,  etc.,  in  and  for  said 

County  do  hereby  certify  that  pursuant  to  the  provisions  and  re- 
quirements of  an  Act  of  Assembly,  entitled,  "An  Act  relating  to 
Foreign  Executors,  Administrators,  Guardians  and  Representa- 
tives of  Decedents  and  Wards,"  approved  April  8th,  1872  (P. 
L.  44),  amended  June  13,  1911,  A.  D.  (P.  L.  892);  amended 


FORMS  47,  48  535 

June  7,  1917  (P.  L.  525)  Executors  of  the  last  will  and 

testament  of deceased  filed  in  this  office  a  duly  authen- 
ticated copy  of  the  last  will  and  testament  of  the  said 

late  of  deceased,  together  with  affidavit  of  Executor 

required  by  Act  of  June  7,  1917, 

Witness  my  hand  and  seal  of  said  office,  at  Pittsburgh,  Pa., 

this day  of A.  D.  19 

Register. 

48.    PETITION  FOR  ANCILLARY  LETTERS  OF  AD- 
MINISTRATION ON  FOREIGN  WILL.    592. 

In  Re  Probate  of  the  Authenticated  Copy  of  the  Will  of 

late  of •  deceased  and  Grant  of  Letters  of  Administration, 

cum  testamento  annexe. 

Register's  Office,  Allegheny  County,  ss: 

Before  the  Register  of  Allegheny  County  personally  appeared 

who,  being  duly  sworn,  says  that being  at  the 

time  a  resident  of County  and  citizen  of died 

at on A.  D. at M.,  having 

first  made last  will  and  testament,  dated wherein 

he  appointed executor,  which  executor  has  since 

That  testator  was  possessed  of  personal  estate  to  the  value  of 

$ and  of  real  estate  (less  encumbrances)  to  the  value  of 

$ ,  as  nearly  as  can  be  ascertained,  situate  in  

That  testator's  heirs  and  next  of  kin  are  as  follows : 

Relationship Residence 

That  deponent,  whose  P.  O.  address  is is  a  resident 

of  Pennsylvania,  and  respectfully  petitions  the  Register  to  admit 
said  authenticated  will  to  probate,  and  to  grant  ancillary  letters  of 
administration  cum  testamento  annexo  on  said  estate  to 

Sworn  and  subscribed  before  me "^ 

A.  D.  19 > 


-Register.]    (Signature.) 


Allegheny  County,  w: 

I, do  swear  that,  as  I  verily  believe,  the  above  named 

died  on  the day  of A.  D. 

at M.,  and  I  do  further  swear  that,  as  the  administrator 

cum  testamento  annexo,  of  the  estate  of  the  said  decedent 

will  well  and  truly  administer  the  goods  and  chattels,  rights  and 


536  FORMS  48,  49,  So 

credits  of  said  deceased,  according  to  law,  and  also  will  diligently 
and  faithfully  regard  and  well  and  truly  comply  with  the  provi- 
sions of  the  law  relating  to  inheritance  tax. 

Sworn  and  subscribed   before   me   this 

day  of  A.  D.  19 

and  ancillary  letters  of  administration  cum 

testamento  annexe  granted  unto (Signature.) 


-Register. 


49.  CERTIFICATE  OF  FILING  FOREIGN  LETTERS 

OF  ADMINISTRATION.    592. 

State  of  Pennsylvania,  Allegheny  County,  ss: 

I,  ,  Register  of  Wills,  etc.,  in  and  for  said 

County  do  hereby  certify  that  pursuant  to  the  provisions  and  re- 
quirements of  an  Act  of  Assembly,  entitled,  "An  Act  relating  to 
Foreign  Executors,  Administrators,  Guardians  and  Representa- 
tives of  Decedents  and  Wards,"  approved  April  8th,  1872  (P.  L. 
44),  amended  June  13,  1911,  A.  D.  (P.  L.  892) ;  amended  June 

7,  1917  (P.  L.  525)  Administrat          of  the  estate  of 

deceased,  filed  in  this  office  a  duly  authenticated  copy  of 

letters  of  administration  issued  on  the  estate  of  said • 

late  of  deceased,  together  with  affidavit  of  Adminis- 
trator required  by  Act  of  June  7,  1917 

Witness  my  hand  and  seal  of  said  office,  at  Pittsburgh,  Pa., 

this day  of A.  D.  19 

Register. 

50.  APPEAL  FROM  THE  REGISTER.  281. 

State  of  Pennsylvania,  Allegheny  County,  ss: 
To  the  Register  of  Wills  of  Allegheny  County. 

Estate  of deceased. 

The  undersigned  hereby  appeals  to  the  Orphans'  Court  of  said 
County  from  the  decision  of  the  Register  of  Wills  in  the  above 
estate,  admitting  to  probate  a  certain  paper  writing,  dated  the 

day  of 19 as  the  last  will  and  testament 

of  said  decedent,  and  granting  letters  testamentary  thereon. 

(Signature.) 


FORMS  50,  51  537 

being  duly  sworn,  doth  depose  and  say  that  the  above 

mentioned  appeal  is  not  intended  for  delay. 

Sworn  to  and,  subscribed  before  me  the 

day  of A.  D.  19 

• R  egister. 

And  now, security  in  the  above  appeal  is  fixed  in  the 

sum  of  $ 

Register. 

And  now, 19 Bond  of  Appellant     ,  with  sureties 

in  the  sum  of Dollars,  filed  and  approved. 

Register. 

51.    BOND  OF  CAVEATOR.    281. 

Know  All  Men  by  these  Presents,  That  we,  all  of 

Allegheny  County,  Pennsylvania,  are  held  and  firmly  bound  unto 

the  Commonwealth  of  Pennsylvania,  in  the  sum  of  

Dollars,  to  be  paid  to  the  said  Commonwealth,  to  which  payment 
well  and  truly  to  be  made,  we  do  bind  ourselves  jointly  and  sev- 
erally, for  and  in  the  whole,  our  heirs,  executors  and  adminis- 
trators, and  each  and  every  of  them,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the day  of 

A.  D.  nineteen  hundred  and 

Whereas,  the  said on  the day  of 

A.  D.  191 filed  in  the  office  of  the  Register  of  Wills  of  Alle- 
gheny County,  Pennsylvania,  a  Caveat  against  the  admission  to 
probate  of  any  paper  writing  alleged  to  be  the  last  Will  and  Test- 
ament of deceased,  or  the  granting  of  Letters 

on  the  estate  of deceased, 

Now  the  Condition  of  this  Obligation  is,  That  if  the  said 
Caveator  shall  pay  any  and  all  costs  which  may  be  occasioned  by 
reason  of  such  caveat,  and  which  may  be  decreed  by  such  Register 
of  Wills,  or  by  the  Orphans'  Court  of  Allegheny  County,  to  be 
paid  by  such  Caveator,  then  this  obligation  to  be  void,  otherwise 
to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the  presence  of : 

(Seal) 

(  Signatures. ) 
Register's  Office,  Allegheny  County,  ss: 

191 ,  before  the  Register  personally  appeared 

about  to  become  a  surety  in  the  sum  of on  the  Caveator's 


538  FORMS  51,  52 

bond  in  the  above-entitled  estate,  who,  being  sworn,  says  that  he 

resides  at  Allegheny  County,  and  is  by  occupation  a 

that  he  is  the  owner1  of  real  estate,  the  title  to  which  is 

in  his  own  name  and  duly  recorded,  situate  in Allegheny 

County,  worth,  above  incumbrances,  $ and  upwar.d,  and 

that  he  is  worth  the  amount  expressed  in  said  bond  over  and  above 
his  just  debts  and  liabilities. 

And  on  the  same  day  there  also  personally  appeared 

likewise  about  to  become  a  surety  on  said  Caveator's  bond,  who, 

being  sworn,  says  that  he  resides  at Allegheny  County, 

and  is  by  occupation  a  ;  that  he  is  the  owner  of  real 

estate,  the  title  to  which  is  in  his  own  name  and  duly  recorded, 

situate  in Allegheny  County,  worth,  above  incumbrances, 

$ and  upward,  and  that  he  is  worth  the  amount  expressed 

in  said  bond  over  and  above  his  just  debts  and  liabilities. 

Sworn  and  subscribed  before  me  the  day 
and  year  aforesaid. 


-Register.  I   (Signatures.) 


52.    INVENTORY  AND  APPRAISEMENT.    392. 

State  of  Pennsylvania,  County  of  Allegheny,  ss: 

Personally  came  before  me in  and  for  said  County, 

the  following  named  persons,  viz : who,  being  duly  sworn, 

do  depose  and  say  that  they,  at  the  request  of will  well 

and  truly  and  without  prejudice  or  partiality,  value  and  appraise 

the  goods  and  chattels,  rights  and  credits,  which  were  of 

deceased  and  in  all  respects  perform  their  duties  as  appraisers  to 
the  best  of  their  skill  and  judgment. 

Sworn  and  subscribed  before  me  this 

day  of 19 

(Signatures.) 

Inventory  and  Appraisement  of  the  goods  and  chattels,  rights 

and  credits,  which  were  of late  of taken  and 

made  in  conformity  with  the  above  deposition. 

(Note. — Appraisers  should  sign  inventory  at  the  end  thereof.) 

Dollars Cents. 


FORMS  53,  54  539 

53.  AFFIDAVIT  OF  NON-RESIDENT  EXECUTOR  AS 

TO     DEBTS    AND    TRANSFER    OF    SECURI- 
TIES.    592. 

In  Re  Estate  of Deceased. 

State  of  County  of  ss: 

Before  me,  the  undersigned  authority,  a  Notary  Public,  in  and 

for  the  County  and  State  aforesaid,  personally  appeared 

who,  being  sworn  according  to  law,  deposes  and  says  that  he  is 

the  executor  of  the  estate  of Deceased,  late  of 

that  the  said  decedent  is  not  indebted  to  any;  person  in  the  Com- 
monwealth of  Pennsylvania,  and  the  proposed  transfer,  assign- 
ment, receipt  or  entry  of  satisfaction  is  not  made  for  the  purpose 
of  removing  any  of  the  assets  of  said  decedent  beyond  the  reach 
of  any  of  the  creditors  in  the  Commonwealth  of  Pennsylvania. 

-(Seal) 
(Signature.) 
Sworn  to  and  subscribed  before  me,  the 

day  of A.  D.  191 

Notary  Public. 

54.  PETITION     FOR     DISTRIBUTION     OF     INTES- 

TATE'S ESTATE.     552. 

In  the  Orphans'  Court  of  Allegheny  County,  State  of  Pennsyl- 
vania : 

Estate  of Deceased. 

The  Statement  of respectfully  represents : 

(a)  The  decedent  died 192 intestate,  and  at  that 

time  was  domiciled  in and  resided  in and  letters 

of  administration  on  estate  (a  copy  being  hereto  at-* 

tached  marked  Exhibit  "A")  were  granted  192 and 

on  the day  of  192 bond  in  the  sum  of 

$ was  approved. 

Letters  were  advertised  in  the and  Pittsburgh  Legal 

Journal,  the  last  publication  having  been  made  on  the  

day  of and  the day  of 192 re- 
spectively, and  proofs  of  publication  marked  Exhibit  "B"  are 
attached.  An  inventory,  a  copy  of  which  is  hereto  attached  and 
marked  Exhibit  "C"  was  filed  on  the day  of 192 — 

(//  any  additional  assets  have  been  received  since  filing  the 
account  state  the  amount  and  nature  thereof,  also  interest  on 
balances  to  date  of  first  day  of  audit.) 


540  FORMS  54 

(b)  Exemption  claimed  by  widow  or  children. 

(c)  All  creditors  of  whose  claims  the  accountant  ha      notice  or 
knowledge  before  filing  the  account,  have  received  actual  notice 
of  the  filing  of  the  account ;  the  amounts  of  these  claims,  together 
with  those  received  since  filing  the  account,  and  whether  they  are 
admitted  to  be  correct  are  as  follows : 

Name Amount 

(Give  preferred  claims  first  and  mark  P.  If  claims  too  many 
for  the  space,  annex  a  list  thereof  marked  Exhibit  "D ;"  if  no 
such  claims,  insert  the  word  "none."  If  any  creditor  or  other 
claimant  has  not  received  actual  notice,  that  must  be  stated.  If 
proceeds  of  sale  of  land  for  payment  of  debts,  attach  List  of 
Liens,  marked  Exhibit  "H.") 

(d)  The  estate  is  subject  to  the  payment  of  direct 

collateral  inheritance  tax  to  the  State  of  Pennsylvania, 

and  is subject  to  the  payment  of  a  Federal  Inheritance 

Tax. 

(//  taxable,  state  whether  tax  has  been  paid.) 

(e)  Decedent  was  

(State  whether  decedent  was  married;  if  married,  whether  a 
husband  on  wife  survived,  and  his  or  her  name,  and  whether  the 
marriage  relationship  was  maintained,  and  whether  the  decedent 
left  children  or  issue  of  deceased  children  and  whether  there  has 
been  any  marriage  settlement.) 

(f)  The  names  of  all  persons  having  any  interest  as  heirs,  or 
next  of  kin,  including  adopted  children  (with  the  names  of  their 
parents  to  show  relationship  if  necessary),  are  as  follows: 

Names Next  of  kin  or  heirs Of  age  or  not 

(write  yes  or  no)  Name  of  guardian,  trustee  or  com- 
mittee, if  any,  and  give  reference  to  number  and  term  of  appoint- 
ment   Amount  of  bond  $ 

(g)  All  of  said  parties  in  interest  are  living. 

(State  exceptions,  if  any,  giving  names  and  dates  of  death,  and 
the  names  of  their  executors  or  administrators,  or  the  names  of 
their  issue,  as  the  same  may  be  material,  and  names  of  parties,  if 
any,  in  the  military  service  who  would  be  adversely  affected  by  a 
decree  of  distribution.) 

(h)  All  parties,  other  than  creditors,  including  the  represen- 
tatives of  persons  who  are  not  sui  juris,  having  any  interest  have 
had notice  of  the  filing  of  the  account. 


FORMS  54,  55  541 

(Insert  "actual,"  if  such  is  the  fact.) 


(State  appraised  value  of  land  set  apart  under  Sec.  2-a  of  the 
Intestate  Act  of  1917,  amended  by  Act  of  1917,  P.  L.  755,  if 
any.) 


(Insert  a  reference  to  all  questions  requiring  adjudication,  and 
a  statement  of  any  material  facts  not  already  given.  If  none, 
insert  the  word  "none."  State  if  any  advancement  or  settlement 
{see  Sec.  22,  Intestate  Act),  was  made  by  decedent,  or  distribu- 
tion by  accountant,  or  if  any  share  has  been  assigned  or  attached.) 

(k)  Kind  of  property  to  be  distributed  and  elections  to  take  in 
kind,  if  any. 

(State  the  ikind  of  property  of  which  the  balance  consists;  if 
not  cash,  state  whether  there  has  been  an  election  to  take  in  kind, 
and  if  so,  attach  copy  marked  Exhibit  "P.") 

(1)  Contracts,  assignments  and  other  writings  - 

(Attach  original  or  certified  copies  of  contracts,  assignments, 
and  other  writings  each  separately  marked  as  an  Exhibit,  begin- 
ning with  "G.") 

Wherefore,  your  accountant  asks  that  distribution  of  the  bal- 
ance of  principal  and  income  be  awarded  to  the  persons  thereunto 
entitled  as  set  forth  in  paragraphs  (c),  (d),  (f)  and  (g)  hereof. 

And  your  accountant  will,  etc. 

Administrator  or  Administratrix. 

(Signatures.) 

55.     PETITION  FOR  DISTRIBUTION  UNDER  A  WILL. 
552. 

In  the  Orphans'  Court  of  Allegheny  County,  State  of  Pennsyl- 

vania : 

Estate  of  -  Deceased. 
The  statement  of  -  respectfully  represents  : 
(a)  The  decedent  died  -  192  -      testate,  and  at  that 
time  was  domiciled  in  -  and  resided  in  -  and  let- 
ters testamentary  on  h        estate   (a  copy  of  same  and  the  will 
and  codicil  being  hereto  attached  marked  Exhibit  "A")    were 
granted  -  192  -  and  on  the  -  >  day  of  - 
192  -  bond  (if  any)  in  the  sum  of  $  -  was  approved. 


542  FORMS  55 

Letters  were  advertised  in  the  -  and  Pittsburgh  Legal 
Journal,  the  last  publication  having  been  made  on  the  - 
day  of  -  and  the  -  day  of  -  192  -  re- 
spectively, and  proofs  of  publication  marked  Exhibit  "B"  are 
attached.  An  inventory,  a  copy  being  attached  and  marked  Ex- 
hibit "C,"  was  filed  on  the  -  day  of  -  192  - 

(//  any  additional  assets  have  been  received  since  filing  account 
state  the  amount  and  nature  thereof,  also  interest  on  balances  to 
date  of  first  day  of  audit.) 

(b)  Exemption  claimed  by  widow  or  children. 

(c)  All  creditors  of  whose  claims  the  account  ha      notice  or 
knowledge  before  filing  the  account,  have  received  actual  notice 
of  the  filing  of  the  account  ;  the  amounts  of  these  claims,  together 
with  those  received  since  filing  the  account,  and  whether  they  are 
admitted  to  be  correct  are  as  follows: 

Name  -  Amount  - 

(Give  preferred  claims  first  and  mark  P.  If  claims  too  many 
for  the  space,  annex  a  list  thereof  marked  Exhibit  "D;"  if  no 
such  claims,  insert  the  word  "none."  If  any  creditor  or  other 
claimant  has  not  received  actual  notice,  that  fact  must  be  stated. 
If  proceeds  of  sale\  of  land  for  payment  of  debts,  attach  List  of 
Liens,  marked  Exhibit  "E") 

(d)  The  estate  is  -  subject  to  the  payment  of  direct 
-  collateral  inheritance  tax  to  the  State  of  Pennsylvania, 
and  is  -  subject  to  the  payment  of  a  Federal  Inheritance 
Tax. 

(//  taxable,  state  whether  tax  has  been  paid.) 

(e)  Decedent  was  - 

(Did  husband  or  wife  survive?  Has  there  been  any  marriage 
settlement?  Was  the  family  relation  maintained?  If  there  is 
an  election  comply  with  Sec.  23  of  Wills  Act  of  1917,  and  attach 
copy  marked  Exhibit  "P.") 


(Were  children  born  after  date  of  will,  or  codicil  if  any?    If 
so,  give  names  and  date  of  birth.) 

(g)  - 

(Is  there  intestacy  as  to  any  part  of  the  estate?    If  so,  give  the 
facts.) 

(h)  The  names  of  all  persons  having  interest  as  legatees,  heirs, 
next  of  kin,  including  adopted  children,  and  devisees  (with  the 


FORMS  56  543 

names  of  their  parents  to  show  relationship  if  necessary),  are  as 
follows : 

Names Legatees,  next  of  kin,  heirs  or  devisees 

Of  age  or  not  (write  yes  or  no)  Name  of  guardian, 

trustee  or  committee,  if  any,  and  give  reference  to  number  and 
term  of  appointment Amount  of  bond  $ 

(*)    All  of  said  parties  in  interest  are  living. 

(State  exceptions,  if  any,  giving  names  and  dates  of  death,  and 
the  names  of  their  executors  or  administrators,  or  the  names  of 
their  issue,  as  the  same  may  be  material,  and  names  of  parties, 
if  any,  in  the  military  service  who  would  be  adversely  affected  by 
a  decree  of  distribution.) 

(/)  All  parties,  other  than  creditors,  including  the  represen- 
tatives of  persons  who  are  not  sui  juris,  having  either  a  vested 

or  contingent  interest,  have  had notice  of  the  filing  of 

the  account. 

(Insert  "actual,"  if  such  is  the  fact.) 

(k)  

(Refer  to  any  questions  requiring  adjudication  and  a  statement 
of  any  material  facts  not  already  given.  If  none,  insert  the  word 
"none." 

(I)  Kind  of  property  to  be,  distributed  and  elections  to  take  in 
kind  if  any. 

(State  the  kind  of  property  of  which  the  balance  consists.  If 
it  is  not  cash,  state  whether  there  has  been  an  election  to  take  in 
kind.  If  so,  attach  original  or  copy  marked  Ex.  "G.") 

(m)  

(State  if  any  distribution  has  been  made  and  if  any  share  has 
been  assigned  or  attached.  If  advancements  are  charged  in  the\ 
will  are  they  charged  in  the  account.  If  there  is  partial  intestacy, 
has  any  settlement  been  made?  See  Sec.  22,  Intestate  Act. 

(n)  Contracts,  assignments  and  other  writings. 

(Insert  schedule  of  contracts,  assignments  and  other  writings, 
and  attach  originals  of  copies  thereof  certified  by  counsel  and 
mark  each  as  an  Exhibit,  beginning  with  "H.") 

Wherefore,  your  accountant  ask  that  distribution  of  the 
balance  of  principal  and  income  be  awarded  to  the  persons  there- 
unto entitled  as  set  forth  in  paragraphs  (c),  (d),  (h)  and  (t) 
hereof. 

Executor  or  Executrix. 

(Signatures.) 


544  FORMS  56 

56.  PETITION  FOR  CITATION  TO  SHOW  CAUSE 
WHY  AN  INQUEST  IN  PARTITION  SHOULD 
NOT  BE  GRANTED.  4. 

In  the  Orphans'  Court  of  Philadelphia  County. 
In  Re  Estate  of    William  Doe,  Deceased. 

Petition  for  citation  to  show  cause  why  an  inquest  in  partition 
should  not  be  granted  for  premises street,  Philadel- 
phia. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  Catherine  Doe,  Mabel  Doe  and  Ida  Doe  re- 
spectfully represents: 

1.  That  William  Doe  died  a  resident  of  Philadelphia  County, 

on  the  day  of  having  first  made,  published 

and  declared  his  last  will  and  testament  dated a  copy  of 

which  is  annexed  hereto,  duly  probated  on in  the  office 

of  the  Register  of  Wills  of  Philadelphia  County,  and  recorded  in 
Will  Book  No. page 

2.  The  said  decedent  died  seized  of  (describe  premises)  being 

the  same  premises  that and  wife  by  indenture  bearing 

date  the day  of and  recorded  at  Philadelphia, 

in  Deed  Book at  page granted  and  conveyed 

unto  the  said  William  Doe,  in  fee,  being  known  as  premises 

Street,  Philadelphia. 

3.  After*  providing  for  a  life  estate  to  his  wife,  Mary  Doe,  the 

decedent  directed  that  if  the  said  premises Street,  in  the  City 

of  Philadelphia,  should  be  sold  out  of  the  proceeds  thereof,  Mary 
Jones  should  be  paid  $100,  and  the  residue  should  be  divided 
equally  among  his  sons,    James    Doe,    William    Doe,    and    his 
daughter,  Kate  Roe. 

4.  By  proceedings  in  your  Honorable  Court  a  decree  was  en- 
tered on  the day  of  March whereby  an  exemption 

of  $300  was  charged  on  said  premises  in  favor  of  Mary  Doe, 
the  widow.    The  said  Mary  Doe  died  a  resident  of  Philadelphia 
County,  on 

5.  Mary  Jones  intermarried  with  one  Peter  Poe,  and  is  living 
and  of  full  age  and  resides  at Street,  Philadelphia. 

6.  James  Doe  died  intestate,  a  resident  of  Philadelphia  County, 

on  the  day  of  leaving  to  survive  him  a  widow, 

Anna  Doe,  and  one  child,  a  daughter,  Anna  Smith,  both  living 
and  of  full  age  and  residing  at Street,  Philadelphia. 


FORMS  56  545 

7.  William  Doe  died  on  the  day  of  intestate, 

leaving  to  survive  him  a  widow,  Catherine  Doe,  and  two  children, 
to  wit:  Mabel  Doe  and  Ida  Doe,  all  living  and  of  full  age  and 
your  petitioners  herein  and  all  residing  in  Philadelphia. 

8.  Kate  Roe  died  a  resident  of  Philadelphia  County,  on  the 
day  of intestate,  leaving  to  survive  her,  no    hus- 
band or  issue  and  leaving  as  her  present  heirs  and  next  of  kin, 
Anna  Smith,  a  daughter  of  James  Doe,  above  set  forth,  and  the 
widow  and  children  of  William  Doe,  above  set  forth. 

Wherefore,  title  to  the  above  premises  is  now  vested  as  follows : 

Anna  Doe,  three-eighteenths;  Anna  Smith,  six-eighteenths, 
Catherine  Doe,  three-eighteenths;  Mabel  Doe,  three-eighteenths; 
Ida  Doe,  three-eighteenths,  so  that  your  petitioners  collectively 
are  seized  of  one-half  of  the  said  premises,  all  subject,  however, 
to  the  legacy  of  $100,  to  Mary  Jones. 

That  no  partition  or  valuation  of  the  said  real  estate  has  been 
had  and  your  petitioners  therefore  pray  your  Honorable  Court 
to  grant  a  citation  to  the  parties  in  interest  to  show  cause  why 
an  inquest  should  not  be  awarded  to  make  partition,  or  valuation 
of  the  said  real  estate. 

And  your  petitioners  will  ever  pray,  etc. 

(Signatures.) 

State  of  Pennsylvania,  County  of  Philadelphia,  ss: 

Catherine  Doe,  Mabel  Doe,  and  Ida  Doe,  being  duly  sworn  ac- 
cording to  law  depose  and  say  that  they  are  the  petitioners  herein 
and  that  the  facts  set  forth  in  the  foregoing  petition  are  true  and 
correct  to  the  best  of  their  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 

day  of 1921. 

(Signature.) 

In  the  Orphans'  Court  of  Philadelphia  County. 

Term, ,  No. . 

In  re  Estate  of  William  Doe,  Deceased. 

DECREE. 

And  Now,  To  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  on  motion  of  ,  at- 
torneys for  the  petitioners,  it  is  hereby  ordered  and  decreed,  that 
the  prayer  thereof  be  granted  and  that  a  citation  be  issued  directed 
35 


546  FORMS  56,  57 

to  Anna  Doe,  Anna  Smith  and  Mary  Jones,  to  show  cause  why 
an  inquest  should  not  be  awarded  to  make  partition  or  valuation 
of  premises  (description),  being  known  as Street,  Phila- 
delphia. 

Returnable  sec.  leg. 

By  the  Court : 


J- 

57.  PETITION  FOR  CITATION  TO  SHOW  CAUSE 
WHY  GUARDIAN  AD  LITEM  SHOULD  NOT  BE 
APPOINTED.  116,  616. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  Deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of  the  Trust  Company  respectfully  rep- 
resents : 

1.  That  your  petitioner  is  Trustee  under  the  Will  of  , 

deceased,  a  copy  of  which  is  hereto  annexed. 

2.  That  your  petitioner  has  filed  its  account  in  your  Honorable 
Court  for  audit  at  which  proceedings  it  is  necessary  that  certain 
minors  hereinafter  set  forth,  interested  contingently  in  remainder 
be  represented  by  a  guardian  ad  litem. 

3.  That  is  a  minor  under  the  age  of  fourteen  years, 

interested  contingently  in  remainder ;  that  said  minor  is  the  son  of 

and ,  both  of  whom  are  living  and  reside  at , 

the  said being  a  daughter  of ,  who  was  a  daughter 

of  the  above  decedent. 

4.  That is  a  minor  over  the  age  of  fourteen  years,  inter- 
ested contingently  in  remainder  in  the  above  estate;  that  said 

minor  is  the  daughter  of and ,  both  of  whom  are 

living  and  both  of  whom  reside  in  the  City  of  ,  the  said 

,  formerly ,  being  a  daughter  of  the  above  decedent. 

5.  That  the  said  minors  and  their  parents  have  neglected  and 
refused,  though  repeatedly  requested  so  to  do,  to  nominate  any 
one  as  guardian  ad  litem  for  said  minors  or  petitioned  your  Hon- 
orable Court  for  the  appointment  of  such  guardian. 

Wherefore,  your  petitioner  prays  that  a  citation  issue  directed 
to  the  said and ,  to  show  cause  why  the  Court 


FORMS  57  547 

should  not  appoint  a  guardian  ad  litem  for  their  son,  , 

under  the  age  of  fourteen  years  and  to and  and 

,  a  minor  over  the  age  of  fourteen  years  to  show  cause 

why  a  guardian  ad  litem  should  not  be  appointed  for  the  said 
minor  for  the  purpose  aforesaid,  and  it  further  prays  that  said 
citation  may  be  served  upon  the  said and by  reg- 
istered mail. 

And  your  petitioner  will  ever  pray,  etc. 

TRUST  COMPANY. 

By 

State  of  Pennsylvania,  County  of  Philadelphia,  ss: 
being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 

knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 

day  of ,  1921. 


DECREE. 

And  Now,  To  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of , 

attorneys  for  the  petitioner,  It  is  hereby  ordered  and  decreed, 
That  the  prayer  thereof  be  granted  and  a  citation  is  hereby  di- 
rected to  be  issued  to and ,  to  show  cause  why  a 

guardian  ad  litem  should  not  be  appointed  by  the  Orphans'  Court 

of  Philadelphia  County  to  represent  ,  their  son,  a  minor 

under  the  age  of  fourteen  years  at  the  audit  of  the  account  of  the 

Trust  Company,  Trustee  under  the  Will  of ,  and  to 

and  ,  to  show  cause  why  the  Orphans'  Court  of 

Philadelphia  County  should  not  appoint  a  guardian  ad  litem  to 

represent  the  said ,  a  minor  over  the  age  of  fourteen  years 

at  the  audit  of  the  account  of  the Trust  Company,  Trustee 

under  the  Will  of ,  and  it  is  further  ordered  and  decreed, 

That  the  said  citation  upon  and  ,  may  be  served 

upon  them  by  registered  mail. 

Returnable  sec.  leg. 

By  the  Court: 

J- 


548  FORMS  58 

58.  PETITION  UNDER  THE  REVISED  PRICE  ACT  BY 
EXECUTOR  FOR  LEAVE  TO  SELL  REAL  ES- 
TATE AT  PRIVATE  SALE  WHERE  NO  AU- 
THORITY TO  SELL  IS  GIVEN  IN  THE  WILL. 
183. 

In  the  Orphans'  Court  for  the  County  of  Philadelphia. 

In  re  Estate  of ,  Deceased. 

-  Term, ,  No. . 

Petition  for  Leave  to  Sell  Real  Estate. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  The  Company,  ,   respectfully 

represents : 

1.  That  it  is  sole  executor  under  the  will  of ,  deceased, 

copy  of  which  is  annexed  hereto.    and ,  the  other 

executors  named  in  said  will,  having  predeceased  the  testator. 

2.  That  the  said died  on day  of ,  leaving 

a  will  duly  probated  by  the  Register  of  Wills  of  Philadelphia 
County,  and  letters  testamentary  were  granted  thereon  to  your 
petitioner  as  executor. 

3.  That  the  said ,  after  certain  bequests  of  sundry  items 

of  personal  effects  and  cash  legacies,  devised  and  bequeathed  the 
residue  of  his  estate  (insert  here  term  of  trust). 

4.  (Recite  parties  in  interest.) 

5.  Among  the  assets  of  the  said is  certain  real  estate, 

being  premises Avenue,  in  the  City  of  Philadelphia,  known 

and  described  as  follows:  (description). 

being  the  same  premises  which ,  a  single  man,  by  indenture 

bearing  date  the day  of ,  and  recorded  at  Philadel- 
phia, in  Deed  Book ,  granted  and  conveyed  unto  the  said 

in  fee. 

6.  That  the  said  property  has  been  sold  by  your  petitioner, 

subject  to  the  approval  of  your  Honorable  Court,  to for 

the  price  or  sum  of ,  in  cash,  of  which has  been  paid 

on  account,  and  the  balance  is  to  be  paid  upon  the  execution  and 
delivery  of  a  deed  for  said  premises. 

7.  That  your  petitioner  has  been  advised  by  two  disinterested 

real  estate  experts  that  the  price  or  sum  of  $ ,  is  a  full  and 

fair  price  for  said  premises,  and  more  than  could  be  obtained 


FORMS  58  549 

therefor  at  public  sale.  Affidavits  to  this  effect  are  attached 
hereto  and  made  part  hereof  as  "Exhibit  B"  and  "Exhibit  C." 

8.  That  the  said  property  is  assessed  for  taxation  in  the  City 

of  Philadelphia  in  the  sum  of  $ ,  as  will  appear  by  official 

certificate  of  the  Board  of  Revision  of  Taxes  annexed  hereto  as 
"Exhibit  D." 

9.  Your  petitioner  and  all  the  parties  interested  in  said  real 
estate  in  remainder  or  otherwise,  consider  it  for  the  best  interest 
of  the  said  estate  that  the  said  premises  shall  be  sold  for  the  price 
or  sum  aforesaid. 

10.  Under  the  terms  of  the  will  of  the  said ,  your  peti- 
tioner is  given  no  authority  to  sell  said  real  estate,  wherefore  it 
becomes  necessary  to  apply  to  your  Honorable  Court  for  leave  to 
make  said  sale. 

11.  All  the  parties  interested  in  said  real  estate  under  the  terms 
of  said  will,  as  hereinbefore  recited,  have  agreed  to  said  sale,  and 
have  agreed  that  it  is  for  the  best  interest  of  the  estate  for  your 
petitioner  to  make  said  sale,  and  have  received  actual  notice  of 
this  petition,  either  in  person  or  by  guardian,  and  have  joined  in 
the  prayer  thereof. 

Wherefore,  your  petitioner  prays  for  leave  and  authority  to 

sell  and  convey  said  premises  abovje  described  to  the  said 

upon  receipt  of  the  balance  of  the  purchase  money  to  which  your 
petitioner  is  entitled ;  said  conveyance  to  vest  title  in  said  premises 
in  the  purchaser  in  fee  simple  free  and  discharged  from  all  trusts, 
contingencies  and  remainders  and  indefeasible  by  any  part  or  per- 
sons having  a  present  or  expectant  interest  therein  in  accordance 
with  the  provisions  of  the  Act  of  Assembly  in  such  case  made 
and  provided. 

And  your  petitioner  will  ever  pray,  etc. 

County  of  Philadelphia,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  Corporation  petitioner,  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of A.  D.  1919. 


550  FORMS  58 

JOINDER. 

We,  the  undersigned,  being  all  the  parties  having  a  present  or 
expectant  interest  in  the  real  estate  designated  in  the  foregoing 
petition  and  at  large:  described  therein,  do  hereby  certify  that  we 
have  had  due  notice  of  the  intended  presentation  of  the  foregoing 
petition  and  do  join  in  the  prayer  thereof. 

(Signatures.) 

EXHIBIT  "B." 

State  of  ,  County  of  ,  ss: 

Personally  appeared ,  who,  being  duly  sworn  according 

to  law,  deposes  and  says  that  he  is  a  real  estate  expert  of 

years'  experience;  that  during  said  period  he  has  been  engaged 

in  actively  carrying  on  his  profession  in  the  County  of  ; 

that  he  is  familiar  with  the  values  of  real  estate  in  the  vicinity  of 
the  real  estate  referred  to  in  the  foregoing  petition;  that  he  has 
examined  the  premises  therein  described  and  as  the  result  of  said 

examination  is  of  the  opinion  that  the  the  sum  of  $ ,  in 

cash  represents!  the  full  market  value  of  the  said  premises  and  is 
a  greater  price  than  could  be  obtained  for  the  same  at  public  sale, 
and  that  a  sale  thereof  at  the  said  price  would  be  to  the  best 
interest  and  advantage  of  said  estate;  that  he  is  not  interested 
as  broker,  agent  or  otherwise  in  the  said  sale. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


DECREE. 

And  Now,  To  wit,  this  day  of  ,  the  Court,  on 

motion  of  ,  attorneys  for  the  petitioner,  and  upon  con- 
sideration of  the  foregoing  petition,  do  grant  the  prayer  thereof, 

and  do  authorize  and  empower  The  Company , 

executor  under  the  will  of ,  deceased,  to  sell  and  convey : 

(description). 

to ,  for  the  price  or  sum  of  $ ,  and  upon  receipt  of 

the  balance  of  said  purchase  price,  to  wit:  $ ,  to  make, 

execute  and  deliver  a  deed  therefor  to  the  said  in  fee, 

free  and  discharged  from  all  trusts  and  remainders  and  inde- 
feasible by  any  party  or  persons  having  a  present  or  expectant 


FORMS  58,  59  551 

interest  therein.     Security  to  be  entered  in  the  sum  of  $ , 

and  the  bond  of  The Company  for  is  hereby  ap- 
proved as  such  security. 

By  the  Court : 


J. 

59.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  ANCILLARY  EXECUTOR  AND  TRUSTEE 
FOR  LEAVE  TO  SELL  REAL  ESTATE  AT  PRI- 
VATE SALE  WHEN  THE  TIME  FIXED  FOR 
SALE  IN  THE  WILL  HAS  NOT  ARRIVED.  183. 

In  the  Orphans'  Court  of  Chester  County. 

In  the  matter  of  the  Estate  of ,  Deceased. 

Term, ,  No. . 

Petition  for  Leave  to  Sell  Real  Estate  at  Private  Sale. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of ,  Ancillary  Executor  and  Trustee  under 

the  Will  of ,  deceased,  respectfully  represents: 

1.  That  your  petitioner  individually    and    as    Executor    and 

Trustee  under  the  will  of  ,  deceased,  is  seized 

of  title  in  (description  of  property). 

being  the  same  premises  which  ,  Executors  and  Trustees 

under  the  will  of  ,  et.  al.,  by  deed  dated  the day 

of ,  and  recorded  in  Deed  Book  for  Chester  County, , 

page  ,  conveyed  to  in  fee,  and   the    said   

afterwards  intermarried  with  your  petitioner  and  died  on  the 

day  of ,  a  resident  of  ,  having  first  made, 

published  and  declared  her  last  will  and  testament  dated  the 

day  of ,  a  copy  of  which  is  annexed  hereto  as  Exhibit  "A," 

duly  probated  in  the  County  of  ,  on  the  day  of 

,  whereunder  Letters  Testamentary  were  duly  issued  to 

your  petitioner,  . 

2.  On  the day  of ,  ancillary  Letters  Testamentary 

were  issued  to  your  petitioner  by  the  Register  of  Wills  of  Chester 
County. 

3.  In  and  by  said  will  after  sundry  pecuniary  bequests  herein- 
after referred  to  testatrix  provided:  (recite  provisions  of  will). 

4.  Of  the  said  pecuniary  legacies  all  of  which  are  hereinafter 
set  forth  the  following  have  been  paid:  $ . 


552  FORMS  59 

5.  All  of  said  parties  in  interest  are  living  and  of  full  age  and 
have  received  notice  of  the  intended  presentation  of  this  petition 
and  have  joined  in  the  prayer  thereof. 

6.  Your  petitioner  is  the  residuary  legatee  under  the  said  will. 

7.  Your  petitioner  has  received  a  very  advantageous  offer  for 
the  sale  of  the  property  hereinabove  set  forth  and  all  parties  in 
interest  have  requested  that  the  sale  be  consummated,  but  owing 
to  the  restriction  in  the  will  that  the  property  shall  be  held  for  a 
period  of  three  years  after  the  death  of  the  testatrix,  the  power 
of  sale  given  to  your  petitioner  in  the  will  is  not  yet  operative  and 
it  is  necessary  that  your  petitioner  apply  to  your  Honorable  Court 
for  leave  and  authority  to  make  the  said  sale. 

8.  Subject  to  the  approval  of  your  Honorable  Court  the  prem- 
ises described  have  been  sold  at  private  sale  to  for  the 

price  or  sum  of  $ in  cash. 

9.  Your  petitioner  is  of  the  opinion  that  the  price  offered  for 
the  said  real  estate  is  full  and  fair  and  better  than  could  be  ob- 
tained for  the  same  at  public  sale  and  that  it  would  be  for  the 

best  interest  and  advantage  of  the  estate  of  ,  deceased, 

that  the  said  sale  be  consummated  in  accordance  with  the  terms 
hereinabove  set  forth  because  the  price  offered  is  better  than 
could  be  obtained  at  public  sale  and  that  the  sale  may  be  made 
without  injury  or  prejudice  to  any  trust,  charity  or  purpose  for 
which  the  same  is  held  and  without  the  violation  of  any  law  which 
may  confer  an  immunity  or  exemption  from  sale  or  alienation. 

10.  Your  petitioner  has  been  assured  by  two  real  estate  experts 
experienced  in  the  values  of  properties  in  the  neighborhood  of 
those  hereinabove  referred  to  that  the  price  offered  for  the  same 
is  full  and  fair  and  the  best  that  could  be  obtained  at  public  sale. 
Their  affidavits  to  this  effect  are  hereto  annexed  as  Exhibits  "B" 
and  "C." 

11.  That  all  parties  interested  in  the  said  estate  as  hereinabove 
set  forth,  are  satisfied  that  the  price  offered  for  the  said  premises 
is  a  full  and  fair  one  and  better  than  could  be  obtained  at  public 
sale,  and  that  the  acceptance  of  the  same  will  be  for  the  best 
interests  of  the  estate. 

12.  That  the  said  premises  are  assessed  for  taxation  in  the 
sum  of  $ ,  as  appears  by  the  official  certificate  hereto  an- 
nexed marked  Exhibit  "D." 


FORMS  59  553 

13.  Your  petitioner  therefore  prays  your  Honorable  Court 
for  leave  and  authority  to  sell  and  convey  the  premises  herein 

described  to  the for  the  price  or  sum  of  $ ,  in  cash ; 

said  conveyance  to  vest  the  title  in  the  purchaser  in  fee  simple, 
freed  and  discharged  of  all  trusts,  contingencies  and  remainders, 
and  indefeasible  by  any  party  or  persons  having  a  present  or  ex- 
pectant interest  therein  in  accordance  with  the  Act  of  Assembly 
in  such  case  made  and  provided. 

And  your  petitioner  will  ever  pray,  etc. 


Ancillary  Executor  and  Trustee  under 
the  will  of ,  deceased. 

State  of  Pennsylvania,  County  of ,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the  petitioner  in  the  foregoing  petition  and  that  the  facts 
set  forth  therein  are  true  to  the  best  of  his  knowledge,  informa- 
tion and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of  ,  1921. 


JOINDER. 

We,  the  undersigned,  being  all  the  parties  interested  in  the 
premises  referred  to  in  the  foregoing  petition,  hereby  acknowl- 
edge that  we  have  received  notice  of  the  intended  presentation  of 
the  foregoing  petition  and  join  in  the  prayer  thereof. 


(Signatures.) 
(Exhibit  "B"  and  "C."    See  Form  58  supra.) 

DECREE. 

And  Now,  to  wit,  this  day  of  ,  1921,  on  con- 
sideration of  the  foregoing  petition  and  affidavits  thereto  annexed, 

and  on  motion  of ,  attorneys  for  the  petitioner,  it  appearing 

that  it  would  be  to  the  best  interest  and  advantage  of  the  estate 


554  FORMS  59,  60 

of  ,  deceased,  that  the  premises  described  in  the  petition 

should  be  sold  to at  private  sale  for  the  sum  of  $ , 

in  cash,  and  that  the  said  price  is  better  than  can  be  obtained  at 
public  sale,  and  that  the  same  may  be  done  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same  is 
held  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation,  it  is  ordered  and 

decreed  that  the  said  sale  be  confirmed  and  that  the  said , 

Ancillary  Executor  and  Trustee  under  the  will  of  ,  de- 
ceased, is  hereby  authorized  and  empowered  to  convey  the  said 
premises,  to  wit:  (description  of  property). 

at  private  sale  for  the  price  of  $ ,  in  cash,  to ,  the 

title  of  the  purchaser  to  be  a  fee  simple  title,  indefeasible  by  any 
party  or  persons  having  a  present  or  expectant  interest  in  the  said 
premises  and  unprejudiced  by  any  error  in  the  proceedings  of  the 

Court ;  security  to  be  entered  in  the  sum  of  $ . 

By  the  Court: 


J.  ' 

60.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  A  CHURCH  HOLDING  PROPERTY  IN  TRUST 
FOR  LEAVE  TO  SELL  THE  SAME  AT  PRIVATE 
SALE  WHERE  NO  POWER  OF  SALE  IS  GIVEN 
UNDER  THE  WILL.  183. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  Deceased. 

Term, ,  No.  . 

Petition  for  Leave  to  Sell  Real  Estate  at1  Private  Sale. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  Church,  of  Philadelphia,  respectfully 

represents : 

i.   That  by  Deed  Poll  bearing  date  the day  of , 

and  recorded  at  Philadelphia,  in  Sheriff's  Book ,  page , 

Sheriff  of  Philadelphia  County,  granted  and  conveyed  (here  de- 
scribe property), 
now  known  as Street,  to in  fee. 


FORMS  60  555 

2.  That  by  Deed  Poll  bearing  date  the day  of , 

and  recorded  at  Philadelphia,  in  Sheriff's  Book  No.  ,  page 

,  Sheriff  of  Philadelphia    County,    granted    and    conveyed 

(description)  : 

now  known  as Street,  to in  fee. 

3.  The  said being  so  seized  of  said  premises  died  on 

the day  of  ,  having  first  made,  published  and  de- 
clared his  last  Will  and  Testament  dated  ,  and  Codicil 

thereto  dated ,  copy  of  which  is  hereto  annexed  as  Exhibit 

"A,"  both  duly  probated  in  the  Office  of  the  Register  of  Wills 
of  Philadelphia  County  on  the day  of . 

4.  In  and  by  the  said  Will  the  said  provided  (here 

recite  term  of.  trust  under  will)  : 

and  your  petitioner  has  held  the  premises  hereinabove  described 
for  the  uses  and  purposes  of  the  said  trust  from  the  date  of  the 
death  of  the  said  decedent  until  the  date  hereof. 

5.  The  houses  erected  on  the  said  premises  are  very  old  and 
in  a  very  dilapidated  state  of  repair,  so  that  in  order  to  continue 
them  in  a  tenantable  condition,  many  hundreds  of  dollars  would 
have  to  be  spent  to  put  them  in  good  repair  and  out  of  its  present 
funds  your  petitioner  is  unable  to  finance  the  said  repairs  and 
improvements. 

6.  Subject  to  the  approval  of  your  Honorable  Court,  premises 

Street,  as  hereinabove  described,  have  been  sold  to , 

for  the  price  or  sum  of  $ ,  in  cash  and  premises  

Street,  as  hereinabove  described,  have  been  sold  to  for 

the  price  or  sum  of  $ in  cash. 

7.  The  said  sales  were  duly  authorized  under  the  Rules  and 
practice  of  your  petitioner  at  a  special  meeting  of  the  Board  of 
Trustees  of  your  petitioner  duly  called  and  regularly  held  on  the 

day  of  ,  and  ratified  and  confirmed  at  a  special 

meeting  of  the  congregation  of  your  petitioner  duly  called  and 
regularly  held  on  the  day  of  . 

8.  Your  petitioner  is  of  the  opinion  that  the  prices  offered  for 
the  said  real  estate  are  full  and  fair  and  better  than  could  be 
obtained  for  the  same  at  public  sale  and  that  it  would  be  for  the 
best  interest  and  advantage  of  the  trust  under  which  said  premises 
are  held  that  the  said  sales  be  consummated  in  accordance  with 
the  terms  hereinabove  set  forth  because  the  prices  offered  are 


556  FORMS  60 

better  than  could  be  obtained  at  public  sale;  that  the  sales  may 
be  made  without  injury  or  prejudice  to  any  trust,  charity  or  pur- 
pose for  which  the  same  are  held  and  without  the  violation  of  any 
law  which  may  confer  an  immunity  or  exemption  from  sale  or 
alienation. 

9.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts  experienced  in  the  values  of  properties  in  the 
neighborhood  of  those  hereinabove  referred  to  that  the  prices 
offered  for  the  same  are  full  and  fair  and  the  best  that  could 
be  obtained  at  public  sale.  Their  affidavits  to  this  effect  are  hereto- 
annexed  as  Exhibits  "B"  and  "C." 

10.  That  the  said  premises  are  assessed  for  taxation  in  the  sum 
of  $ ,  each  as  appears  by  the  official  certificate  hereto  an- 
nexed marked  Exhibit  "D." 

11.  Your  petitioner  has  no  power  of  sale  under  the  terms  of  the 
will  of  the  above  decedent  as  hereinabove  set  forth,  and  there- 
fore presents  this  petition  to  your  Honorable  Court  to  obtain  its 
consent  thereto  under  and  by  virtue  of  Section  2  (a)  (5)  of  the 
Revised  Price  Act  of  1917. 

12.  Your  petitioner  therefore  prays  your  Honorable  Court  for 
leave  and  authority  to  sell  and  convey  the  premises  herein  de- 
scribed, to  wit : Street,  to ,  for  the  price  or  sum  of 

$ ,  in  cash  and  premises Street,  to  for  the 

price  or  sum  of  $ in  cash ;  said  conveyance  to  vest  the  title 

in  the  purchasers  in  fee  simple  freed  and  discharged  of  all  trusts, 
contingencies  and  remainders,  and  indefeasible  by  any  party  or 
persons  having  a  present  or  expectant  interest  therein  in  accord- 
ance with  the  Act  of  Assembly  in  such  case  made  and  provided. 

And  your  petitioner  will  ever  pray,  &c. 

Church, 

By 

President. 
Attest : 


Secretary. 


FORMS  60  557 

State  of  Pennsylvania,  County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the  President  of  the  Board  of  Trustees  of  the 

Church,  of  Philadelphia,  and  that  the  facts  set  forth  in  the  fore- 
going petition  are  true  to  the  best  of  his  knowledge,  information 
and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 


EXHIBIT  B. 
(See  Form  58  supra.) 

DECREE. 

And  Now,  to  wit:  this  day  of  ,  1920,  on  con- 
sideration of  the  foregoing  petition  and  affidavits  thereto  annexed 
and  on  motion  of ,  attorneys  for  the  petitioner,  it  appear- 
ing that  it  would  be  to  the  best  interest  and  advantage  of  the  estate 

of and  of  the  trust  under  which  the Church,  of 

Philadelphia,  holds  title  to  the  premises  hereinafter  described  that 

the  premises  described  in  the  petition,  to  wit:  Street, 

should  be  sold  to for  $ in  cash  at  private  sale  and 

Street,  should  be  sold  to ,  at  private  sale  for  the 

sum  of  $ in  cash,  and  that  the  said  prices  are  better  than 

can  be  obtained  at  public  sale  and  that  the  same  may  be  done 
without  injury  or  prejudice  to  any  trust,  charity  or  purpose  for 
which  the  same  are  held  and  without  the  violation  of  any  law 
which  may  confer  an  immunity  or  exemption  from  sale  or  aliena- 
tion, it  is  ordered  and  decreed  that  the  said  sales  be  confirmed 

and  that  the  said  Church,  of  Philadelphia,    is    hereby 

authorized  and  empowered  to  convey  the  said  premises,  to  wit: 
(here  insert  descriptions)  : 

known  as Street,  to for  $ in  cash ;  the  titles 

of  the  purchasers  to  be  fee  simple  titles,  indefeasible  by  any 
party  or  persons  having  a  present  or  expectant  interest  in  the  said 
premises  and  unprejudiced  by  any  error  in  the  proceedings  of  the 
Court ;  security  to  be  entered  in  the  sum  of  $ . 

By  the  Court : 


J- 


558  FORMS  61 

61.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  TRUSTEE  FOR  LEAVE  TO  SELL  REAL  ES- 
TATE AT  PRIVATE  SALE  WHERE  THE  TRUS- 
TEE HAS  NO  POWER  OF  SALE  UNDER  THE 
WILL.  183. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  Deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  the Trust  Company,  substituted  trustee 

under  the  will  of ,  deceased,  respectfully  represents : 

1.   died  ,  having  first  made,  published  and  de- 
clared his  last  Will  and  Testament  dated ,  duly  probated 

in  the  Office  of  the  Register  of  Wills  of  Philadelphia  County, 

wherein  and  whereby  the  decedent  appointed  his  sons, and 

executors  and  trustees,  both  of  whom  are  now  deceased. 

A  copy  of  the  will  is  hereto  annexed  as  Exhibit  "A." 

2.  That  by  the  adjudication  of  your  Honorable  Court  dated 

,  sur  the  account  of  the  Executors  of  the  said  estate,  the 

residue  of  the  estate  was  awarded  to and ,  execu- 
tors, in  trust  under  the  terms  of  the  will. 

3.  That  the  said  died  upwards  of  twenty  years  ago 

and  that  the  said ,  the  surviving  executor  and  trustee  died 

on  the day  of ,  and  your  Honorable  Court  by  decree 

dated  the  day  of  ,  appointed  the  Trust 

Company  substituted  trustee  under  the  will  of  the  said  decedent. 

4.  That  in  addition  to  the  personal  estate  awarded  to  said 
trustees  under  said  adjudication,  the  deceased  also  possessed  cer- 
tain real  estate  in  the  City  of  Philadelphia,  amounting  in  value 
to  upwards  of  $ . 

5.  Under  his  will,  the  decedent  gave  his  executors  the  power 
to  sell  certain  real  estate  in  the  City  of  Philadelphia,  and  specif- 
ically forbade  that  they  sell  any  other  including  the  premises 
herein  described,  until  after  the  decease  of  his  three  daughters, 
to  wit, and ,  two  of  whom  are  still  living. 

6.  By  the  terms  of  his  will  the  decedent  gave  the  residue  of 
his  estate  to  his  executors  in  trust  (recite  terms  of  trust)  : 

7.  (Recite  parties  in  interest  and  how  acquired). 


FORMS  61  559 

8.  Among  the  assets  of  the  residuary  estate  of  the  said  dece- 
dent, title  to  which  is  now  vested  in  your  petitioner  is  (describe 
property  by  latest  deed)  : 

being  known  as  premises Street,  in  the  City  of  Philadel- 
phia, and  being  the  same  premises  that  by   Indenture 

bearing  date  the  day  of  ,  and  now  recorded  at 

Philadelphia,  in  Deed  Book  ,  page  ,  &c.,  granted 

and  conveyed  unto  the  said in  fee. 

9.  The  said  premises  Street,  are  in  very  poor  condi- 
tion.    The  roof,  woodwork  and  interior  all  need  general  over- 
hauling.   The  property  is  now  rented  at  $ per  month,  or 

$ per  year.    The  fixed  charges,  including  taxes  and  water 

rent,  amount  to  $ ,  and  the  average  cost  of  repairs  is  ap- 
proximately $ annually,  so  that  the  net  return  averages 

$ per  year,  which  is  interest  at  6  per  cent,  on  $ . 

If  the  proposed  sale,  however,  herein  referred  to,  is  approved  by 

your  Honorable  Court,  approximately  $ will  be  available 

to  the  estate  on  which  the  annual  return  will  amount  to  $ . 

10.  Subject  to  the  approval  of  your  Honorable  Court,  the 

premises  above  described  have  been  sold  at  private  sale  to 

and  ,  for  the  price  or  sum  of  $ ,  $ in  cash 

and  $ secured  by  the  bond  and  mortgage  of  the  grantees 

in  the  usual  form  with  interest  at  6  per  cent,  per  annum,  payable 
at  the  expiration  of  three  years  from  the  date  thereof  or  all  in 
cash  at  the  option  of  the  purchasers. 

11.  Your  petitioner  is  of  the  opinion  that  the  price  offered  for 
the  said  real  estate  is  full  and  fair  and  better  than  could  be  ob- 
tained for  the  same  at  public  sale  and  that  it  would  be  for  the 

best  interest  and  advantage  of  the  estate  of  ,  deceased, 

that  the  said  sale  be  consummated  in  accordance  with  the  terms 
hereinabove  set  forth,  because  the  price  offered  is  better  than 
could  be  obtained  at  public  sale,  that  the  sale  may  be  made  with- 
out injury  or  prejudice  to  any  trust,  charity  or  purpose  for  which 
the  same  is  held  and  without  the  violation  of  any  law  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation. 

12.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts  experienced  in  the  values    of    properties    in    the 
neighborhood  of  those  hereinabove  referred  to  that  the  price 
offered  for  the  same  is  full  and  fair  and  the  best  that  could  be 
obtained  at  public  sale.    Their  affidavits  to  this  effect  are  hereto 
annexed  as  Exhibits  "B"  and  "C," 


560  FORMS  61 

13.  That  all  parties  interested  in  the  said  estate  as  hereinabove 
set  forth,  are  satisfied  that  the  price  offered  for  the  said  premises 
is  a  full  and  fair  one  and  better  than  could  be  obtained  at  public 
sale,  and  that  the  acceptance  of  the  same  will  be  for  the  best 
interest  of  the  estate.    The  said  parties  have  received  notice  of 
the  intended  presentation  of  this  petition  and  have  joined  in  the 
prayer  thereof. 

14.  That  the  said  premises  are  assessed  for  taxation  in  the 
sum  of  $ ,  as  appears  by  the  official  certificate  heerto  an- 
nexed marked  Exhibit  "D." 

15.  Your  petitioner  has  no  power  of  sale  under  the  terms  of 
the  will  of  the  above  decedent  as  hereinabove  set  forth  and  there- 
fore presents  this  petition  to  your  Honorable  Court  to  obtain  its 
consent  thereto. 

16.  Your  petitioner  therefore  prays  your  Honorable  Court  for 
leave  and  authority  to  sell  and  convey  the  premises  herein  de- 
scribed to and ,  for  the  price  or  sum  of  $ 

in  cash  and  $ secured  by  the  bond  and  mortgage  of  the 

grantees  in  the  usual  form  with  interest  at  6  per  cent,  per  annum, 
payable  at  the  expiration  of  three  years  from  the  date  thereof  or 
all  in  cash  at  the  option  of  the  purchasers;  said  conveyance  to 
vest  the  title  in  the  purchaser  in  fee  simple,  freed  and  discharged 
of  all  trusts,  contingencies  and  remainders,  and  indefeasible  by 
any  party  or  persons  having  a  present  or  expectant  interest  therein 
in  accordance  with  the  Act  of  Assembly  in  such  case  made  and 
provided. 

And  your  petitioner  will  ever  pray,  etc, 

The Trust  Company. 

By 

State  of  Pennsylvania,  County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


FORMS  61  561 

JOINDER. 

We,  the  undersigned,  being  all  the  parties  interested  in  the 
premises  referred  to  in  the  foregoing  petition,  acknowledge  that 
we  have  received  notice  of  the  intended  presentation  of  the  fore- 
going petition  and  join  in  the  prayer  thereof. 

EXHIBIT  "B." 

Commonwealth  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

Personally  appeared ,  who,  being  duly  sworn  according 

to  law,  deposes  and  says  that  he  is  a  real  estate  expert  of 

years'  experience,  now  engaged  in  business  at ;  that  during 

said  period  he  has  been  engaged  in  actively  carrying  on  his  pro- 
fession in  the  County  of  Philadelphia;  that  he  is  familiar  with 
the  values  of  real  estate  in  the  vicinity  of  the  real  estate  referred 
to  in  the  foregoing  petition;  that  he  has  examined  the  premises 
therein  described  and  as  the  result  of  said  examination  is  of  the 

opinion  that  the  sum  of  $ ,  $ in  cash^and  $ 

secured  by  the  bond  and  mortgage  of  the  grantees  in  the  usual 
form  with  interest  at  6  per  cent,  per  annum,  payable  at  the  expi- 
ration of  three  years  from  the  date  thereof  or  all  in  cash  at  the 
option  of  the  purchasers. represents  the  full  market  value  of  the 
said  premises  and  is  a  greater  price  than  could  be  obtained  for 
the  same  at  public  sale,  and  that  a  sale  thereof  at  the  said  price 
would  be  to  thej  best  interest  and  advantage  of  said  estate. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


DECREE. 

And  Now,  to  wit:  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  affidavits  thereto  attached 
and  on  motion  of ,  attorneys  for  the  petitioner,  it  appear- 
ing that  it  would  be  to  the  best  interest  and  advantage  of  the 

estate  of that  the  premises  described  in  the  petition  should 

be  sold  to and  ,  at  private  sale,  for  the  sum  of 

$ ,  $ in  cash  and  $ secured  by  the  bond  and 

mortgage  of  the  grantees  in  the  usual  form  with  interest  at  6  per 
cent,  per  annum,  payable  at  the  expiration  of  three  years  from 
the  date  thereof  or  all  in  cash  at  the  option  of  the  purchasers  and 
36 


562  FORMS  61,  62 

that  the  said  price  is  better  than  can  be  obtained  at  public  sale 
and  that  the  same  may  be  done  without  injury  or  prejudice  to 
any  trust,  charity  or  purpose  for  which  the  same  is  held  and 
without  the  violation  of  any  law  which  may  confer  an  immunity 
or  exemption  from  sale  or  alienation,  //  is  ordered  and  decr.eed 

that  the  said  sale  be  confirmed  and  that  the  said  Trust 

Company,  substituted  trustee  under  the  will  of ,  deceased, 

is  hereby  authorized  and  empowered  to  convey  the  said  premises, 
to  wit:  (description  of  property)  : 

being  known  as  premises Street,  Philadelphia,  to 

and ,  for  the  price  of  $ ,  $ in  cash  and  $ 

secured  by  the  bond  and  mortgage  of  the  grantees  in  the  usual 
form  with  interest  at  6  per  cent,  per  annum  payable  at  the  expira- 
tion of  three  years  from  the  date  thereof  or  all  in  cash,  at  the 
option  of  the  purchasers ;  the  title  of  the  purchasers  to  be  a  fee 
simple  title,  indefeasible  by  any  party  or  persons  having  a  present 
or  expectant  interest  in  the  said  premises  and  unprejudiced  by 
any  error  in  the  proceedings  of  the  Court ;  security  to  be  entered 
in  the  sum  of  $ ,  and  the  bond  of  the Trust  Com- 
pany is  hereby  approved  as  such  security. 
By  the  Court : 


6a.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  TRUSTEE  FOR  LEAVE  TO  JOIN  WITH 
OTHERS  IN  THE  PRIVATE  SALE  OF  REAL 
ESTATE  WHERE  THERE  IS  NO  POWER  OF 
SALE  IN  THE  WILL.  183. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  Deceased. 

Term, ,  No. . 

Petition  for  Leave  to  Join  in  the  Sale  of  Real  Estate  at  Private 

Sale. 
To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  The  Company,  ,  Trustee  of  the 

Estate  of ,  deceased,  respectfully  represents: 

i.  That died ,  a  resident  of  Philadelphia  County, 

seized  of  title  to  (description)  : 


FORMS  62  563 

being  known  as  Nos.  Street,  and  Nos.  Avenue, 

being  the  corner  of  Street  and  Avenue, 

Philadelphia. 

2.  The  will  of  the  said  decedent  dated ,  was  duly  pro- 
bated on  the  day  of  ,  and  Letters  Testamentary 

were  duly  granted  to ,  one  of  the  Executors  named  therein. 

Copy  of  said  will  is  hereto  annexed  marked  Exhibit  "A." 

3.  By  his  will  the  decedent  provided  inter  alia  as  follows: 
(recite  provisions  of  will) : 

4.  In  an  adjudication  by  Judge ,  of  the  Orphans'  Court 

of  Philadelphia  County,  sur  account  of ,  Trustee,  wherein 

the  fund  before  the  Court  represented  rents  from  real  estate  and 
the  award  of  a  jury  of  view  for  damages  caused  to  the  decedent's 

real  estate  by  the  change  of  grade  of  Street,  the  Court 

held:        *        *        * 

5.  In  a  later  adjudication  before Judge ,  sur  the 

account  of  The  Company  ,  Trustee,  wherein  the 

fund  accounted  for  represented  a  balance  in  the  hands  of  the 
accountant  from  the  sale  of  certain  real  estate,  the  Court  held: 

*         *         * 

6.  The  said was  discharged  as  Trustee  of  the  estate  on 

and  on  ,  The  Company  ,  was  ap- 


pointed Trustee  of  the  said  estate  in  his  place  and  stead  and  holds 
title  as  Trustee  for  an  undivided  four-ninths  for  the  benefit  of  the 
widow  for  life. 
*^ *         *         * 

8.  (Recite  parties  in  interest.) 

9.  Title  to  the  said  real  estate  is  therefore  vested  as  follows : 

four-ninths  in  The  Company  ,  Trustee  under  the 

will  of ,  deceased,  for  the  life  of  the  widow ;  one-ninth  in 

;  one-ninth  in ;  one-ninth  in ;  one-ninth  in 

The Company ,  Guardian  of  the  Estates  of , 

subject   to   the   life   interest    of   ;   one-ninth    in   

guardian  of  the  estates  of and ,  minors,  subject  to 

the  life  interest  of . 

10.  The  said  children  and  issue  of  deceased  children  are  also 
vested  with  the  remainder  interest  in  the  four-ninths  held  in  trust 
as  aforesaid  for  the  life  of  the  widow. 

11.  The  premises  hereinabove  described  are  vacant  lots  from 
which  no  income  can  be  derived,  but  which,  on  the  other  hand, 


564  FORMS  62 

on  account  of  taxes  are  a  constant  drain  upon  the  estate  for  the 
payment  of  which  no  income  ia  available. 

12.  Subject  to  the  approval  of  your  Honorable    Court    the 

premises  above  described  have  been  sold  at  private  sale  to 

for  the  price  or  sum  of  $ in  cash. 

13.  Your  petitioner  is  of  the  opinion  that  the  price  offered  for 
the  said  real  estate  is  full  and  fair  and  better  than  could  be  ob- 
tained for  the  same  at  public  sale  and  that  it  would  be  for  the 
best  interest  and  advantage  of  their    estate    and  all    parties    in 
interest  that  the  said  sale  be  consummated  in  accordance  with  the 
terms  hereinabove  set  forth  because  the  price  offered  is  better 
than  could  be  obtained  at  public  sale  and  because  it  would  be 
necessary  to  have  partition  proceedings  to  separate  the  ownership 
of  the  various  persons  interested  and  by  making  the  sale  to  the 
said  purchaser,  the  expense  and  delay  of  partition  proceedings 
can  be  avoided,  and  that  it  is  not  likely  that  the  property  will 
increase  in  -value  within  the  time  necessary  for  the  partition  pro- 
ceedings, that  the  sale  may  be  made  without  injury  or  prejudice 
to  any  trust,  charity  or  purpose  for  which  the  same  is  held  and 
without  the  violation  of  any  law  which  may  confer  an  immunity 
or  exemption  from  sale  or  alienation. 

14.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts  experienced  in  the  values  of  properties  in  the  neigh- 
borhood of  those  hereinabove  referred  to,  that  the  price  offered 
for  the  same  is  full  and  fair  and  the  best  that  could  be  obtained 
at  public  sale.    Their  affidavits  to  this  effect  are  hereto  annexed 
as  Exhibits  "B"  and  "C." 

15.  That  all  parties  interested  in  the  said  estate  as  hereinabove 
set  forth  are  satisfied  that  the  price  offered  for  the  said  premises 
is  a  full  and  fair  one  and  better  man  could  be  obtained  at  public 
sale,  and  that  the  acceptance  of  the  same  will  be  for  the  best 
interests  of  the  estate.    The  said  parties  have  received  notice  of 
the  intended  presentation  of  this  petition  and  have  joined  in  the 
prayer  thereof. 

16.  That  the  said  premises  are  assessed  for  taxation  in  the 
sum  of  $ ,  as  appears  by  the  official  certificate  hereto  an- 
nexed marked  Exhibit  "D." 

17.  Your  petitioner  has  no  power  of  sale  under  the  terms  of 
the  will  of  the  above  decedent  as  hereinabove  set  forth,  and  there- 
fore presents  this  petition  to  your  Honorable  Court  to  obtain 
its  consent  thereto. 


FORMS  62  565 

18.  Your  petitioner  therefore  prays  your  Honorable  Court  for 
leave  and  authority  to  join  with  the  other  parties  in  interest  in 
the  sale  and  conveyance  of  the  premises  herein  described  upon 
receipt  of  the  proportionate  part  of  the  purchase  price  to  which 

it  is  entitled  to  the  said for  the  price  or  sum  of  $ in 

cash;  said  conveyance  to  vest  the  title  in  the  purchaser  in  fee 
simple,  freed  and  discharged  of  all  trusts,  contingencies  and  re- 
mainders, and  indefeasible  by  any  party  or  persons  having  a 
present  or  expectant  interest  therein  in  accordance  with  the  Act 
of  Assembly  in  such  case  made  and  provided. 

And  your  petitioner  will  ever  pray,  etc. 

By 

Trustee  of  the  Estate  of ,  Deceased. 

State  of  Pennsylvania,  County  of  Philadelphia,  ss: 
being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 

knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 

day  of ,  1921. 


JOINDER. 

We,  the  undersigned,  being  all  the  parties  interested  in  the 
premises  referred  to  in  the  foregoing  petition,  hereby  acknowledge 
that  we  have  received  notice  of  the  intended  presentation  of  the 
foregoing  petition  and  join  in  the  prayer  thereof. 

EXHIBIT  "B"  AND  "C." 
(See  Form  58  supra.) 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  Deceased. 

-  Term,  -       — ,  No.  -       — . 

DECREE. 

And  Now,  to  wit,  this  day  of  ,  1921,  on  con- 
sideration of  the  annexed  petition  and  affidavits  thereto  annexed 
and  on  motion  of ,  attorneys  for  the  petitioner,  it  appear- 
ing that  it  would  be  to  the  best  interest  and  advantage  of  the 

estate  of  ,  deceased,  that  the  premises  described  in  the 

petition  should  be  sold  to ,  at  private  sale  for  the  sum  of 


566  FORMS  62,  63 

$ in  cash,  and  that  the  said  price  is  better  than  can  be 

obtained  at  public  sale,  and  that  the  same  may  be  done  without 
injury  or  prejudice  to  any  trust,  charity  or  purpose  for  which  the 
same  is  held  and  without  the  violation  of  any  law  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation,  it  is 
ordered  and  decreed  that  the  said  sale  be  confirmed  and  that  -the 

said  The Company ,  substituted  Trustee  under  the 

will  of ,  deceased,  is  hereby  authorized  and  empowered  to 

join  in  the  sale  and  conveyance  of  the  said  premises,  to  wit: 
(description)  : 

being  known  as  Nos.  Street,  and  Avenue,  being 

the corner  of  Street  and Avenue,  Phila- 
delphia, to  ,  at  private  sale  for  the  price  of  $ in 

cash,  upon  receipt  of  the  proportionate  part  of  the  purchase  price 
to  which  it  is  entitled;  the  title  of  the  purchaser  to  be  a  fee 
simple  title,  indefeasible  by  any  party  or  persons  having  a  present 
or  expectant  interest  in  the  said  premises  and  unprejudiced  by 
any  error  in  the  proceedings  of  the,  Court ;  security  to  be  entered 
in  the  sum  of  $ ,  and  the  bond  of  the  said  The Com- 
pany   ,  is  hereby  approved  as  such  security. 

By  the  Court : 


(Note:  In  Philadelphia  County  it  is  now  required  that  the 
decree  be  the  first  page  of  the  petition.  This  form  of  decree  is 
adapted  for  that  purpose.) 

63.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  GUARDIAN  FOR  LEAVE  TO  SELL  REAL 
ESTATE  AT  PRIVATE  SALE  WHERE  THE 
PREMISES  ARE  IN  BAD  REPAIR  AND  THE 
SALE  WILL  INCREASE  THE  INCOME  FOR  THE 
MINOR.  183. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  a  minor. 

—  Term, ,  No. . 

Petition  for  Leave  to  Sell  Real  Estate  at  Private  Sale. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  ,  Guardian  of  the  estate  of  ,  a 

minor,  respectfully  represents: 


FORMS  63  567 

1.  That and  wife  by  indenture  bearing  date  the 

day  of  ,  and  recorded  at  Philadelphia,  in  the  Office  for 

Recording  of  Deeds  in  and  for  the  City  and  County  of  Phila- 
delphia, in  Deed  Book  ,  page  ,  &c.,  granted  and 

conveyed  (description  of  property)  : 

known  as  premises Street,  Philadelphia,  to in  fee 

under  and  subject  to  certain  building  restrictions  and  also  under 

and  subject  to  the  payment  of  a  certain  first  mortgage  of  $ 

and  a  second  mortgage  of  $ . 

2.  That  the  said  ,  being  seized  of  said  premises  died 

on  the day  of ,  1914,  intestate,  leaving  to  survive 

him  his  wife, ,  and  his  daughter, a  minor,  as  his 

only  heirs  and  next  of  kin  whereby  title  to  the  said  premises  be- 
came vested  in  the  said  minor,  subject  to  the  life  interest  of  the 
said in  one-third  thereof. 

3.  That  the  said has  remised  and  released  to  the  said 

minor  all  her  interest  in  said  real  estate  so  that  the  entire  title 
to  the  same  is  now  vested  in  said  minor. 

4.  That was  appointed  guardian  of  the  estate  of  the 

above  minor  by  decree  of  the  Orphans'  Court  of  Montgomery 
County,  dated . 

5.  The  improvements  on  the  said  premises  consist  of  a  two- 
story  brick  dwelling  without  modern  improvements  which,  up 

to  several  months  ago,  had  been  rented  for  $ per  month. 

That  the  said  premises  were  vacant  for  several  months,  but  are 
now  occupied  by  a  proposed  purchaser  pending  the  approval  of 
this  agreement,   with  the  understanding  that  he  shall  pay  the 

fixed  charges  thereon.    The  premises  are  assessed  for  $ . 

In  order  to  keep  them  in  tenantable  condition,  it  is  estimated 

that  approximately  $ per  annum  would  have  to  be  spent 

for  repairs.    Taxes  and  water  rent  aggregate  $ per  year 

and  interest  on  the  first  mortgage  at  6  per  cent.  $ per  year, 

leaving  a  net  return  of  $ ,  which  represents  the  interest  on 

an  equity  of  approximately  $ . 

6.  On paid  the  said  second  mortgage  on  the  said  prem- 
ises which  with  the  debt,  interest    and    satisfaction    fee,    then 

amounted  to  the  sum  of  $ ,  which  amount  with  interest 

thereon  from  the  said  date  she  claims  to  have  repaid  to  her  out 
of  the  proceeds  of  the  sale  of  said  property  herein  prayed  for. 

7.  Subject  to  the  approval  of  your  Honorable  Court,  the  prem- 
ises above  described  have  been  sold  at  private  sale  to for 


568  FORMS  63 

the  price  or  sum  of  $ in  cash,  that  is,  $ in  cash  sub- 
ject to  a  first  mortgage  of  $ . 

8.  Your  petitioner  is  of  the  opinion  that  the  price  offered  for 
the  said  real  estate  is  full  and  fair  and  better  than  could  be  ob- 
tained for  the  same  at  public  sale  and  that  it  would  be  for  the 

best  interest  and  advantage  of  the  estate  of that  the  said 

be  consummated  in  accordance  with  the  terms  hereinabove  set 
forth;    that   the    sale    may   be   made   without   injury    or   pre- 
judice to  any  trust,  charity  or  purpose  for  which  the  same  is 
held  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation. 

9.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts,  experienced  in  the  values  of  properties  in  the 
neighborhood  of  those  hereinabove  referred  to  that  the  price 
offered  for  the  same  is  full  and  fair  and  the  best  that  could  be 
obtained  at  public  sale.    Their  affidavits  to  this  effect  are  hereto 
annexed  as  Exhibits  "A"  and  "B." 

10.  That  all  parties  interested  in  the  said  estate  as  hereinabove 
set  forth,  are  satisfied  that  the  price  offered  for  the  said  prem- 
ises is  a  full  and  fair  one  and  better  than  could  be  obtained  at 
public  sale,  and  that  the  acceptance  of  the  same  will  be  for  the 
best  interests  of  the  estate.    The  said  parties  have  received  notice 
of  the  intended  presentation  of  this  petition  and  have  joined  in 
the  prayer  thereof. 

11.  That  the  said  premises  are  assessed  for  taxation  in  the 

sum  of  $ ,  as  appears  by  the  official  certificate  hereto  an- 

nexe'd,  marked  Exhibit  "C." 

12.  Your  petitioner  therefore  prays  your  Honorable  Court 

for  leave  and  authority  to  convey  the  said  premises  for  $ 

in  cash,  over  and  above  a  first  mortgage  of  $ ,  to , 

free,  clear  and  discharged  of  all  trusts,  claims  and  demands,  the 
title  of  the  purchaser  to  be  in  fee  simple,  indefeasible  by  any 
party  or  persons  having  a  present  or  expectant  interest  in  the 
premises  and  the  purchase  money  to  be  in  all  respects  substituted 
for  the  land  sold  and  to  be  applied  to  the    uses    of    the    same 
persons  for  the  same  estate  and  the  same  interests  that  it  is  now 
held. 

And  your  petitioner  will  ever  pray,  &c. 


Guardian  of  the  Estate  of ,  a  minor. 


FORMS  63  569 

State  of  ,  County  of  ,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the  petitioner  herein  and  that  the  facts  set  forth  in  the 
foregoing  petition  are  true  to  the  best  of  his  knowledge,  infor- 
mation and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 

We,  the  undersigned,  being  all  the  parties  interested  in  the 
estate  of ,  a  minor,  hereby  acknowledge  that  we  have  re- 
ceived notice  of  the  intended  presentation  of  the  foregoing  peti- 
tion and  join  in  the  prayer  thereof. 


In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  a  minor. 

Term, ,  No. . 

DECREE. 

And  Now,  to  wit,  this  day  of  ,  1921,  on  con- 
sideration  of   the   annexed   petition   and   the   affidavits   'thereto 

attached  and  on  motion  of  ,  attorneys  for  the  petitioner, 

it  appearing  that  it  would  be  to  the  best  interest  and  advantage 

of  the  estate  of ,  a  minor  and  all  parties  interested  therein, 

that  the  premises  described  in  the  petition  should  be  sold  to 

,  at  private  sale  for  the  price  or  sum  of  $ in  cash, 

under  and  subject  to  a  first  mortgage  of  $ ;  that  the  said 

price  is  better  than  can  be  obtained  at  public  sale  and  that  the 
same  may  be  done  without  injury  or  prejudice  to  any  trust, 
charity  or  purpose  for  which  the  same  is  held  and  without  the 
violation  of  any  law  which  may  confer  an  immunity  or  exemp- 
tion from  sale  or  alienation,  It  is  ordered  and  decreed  that  the 

said ,  Guardian  of  the  estate  of ,  a  minor,  is  hereby 

authorized  and  directed  to  convey  the  said  premises  to  the  said 
,  upon  receipt  of  the  said  purchase  price  of  $ ,  sub- 
ject to  the  necessary  adjustment  at  the  time  of  settlement  of 
taxes  and  water  rent  among  the  persons  entitled  thereto  and  to 
the  repayment  to  of  the  sum  of  $ ,  with  interest 


570  FORMS  63,  64 

thereon  from ,  the  title  of  the  purchaser  to  be  a  fee  simple 

title,  subject  to  certain  building  restrictions  and  subject  to  the  said 

first  mortgage  of  $ ,  indefeasible  by  any  party  or  persons 

having  a  present  or  expectant  interest  in  the  said  premises  and 
unprejudiced  by  any  error  in  the  proceedings    of    the    Court; 

security  to  be  entered  in  the  sum  of  $ . 

By  the  Court : 


J- 

64.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  GUARDIAN  FOR  LEAVE  TO  JOIN  WITH 
OTHERS  IN  THE  PRIVATE  SALE  OF  REAL 
ESTATE  TO  AVOID  PARTITION.  183. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  a  minor. 

Term, ,  No. . 

Petition  for  Leave  to  Join  in  the;  Sale  of  Real  Estate  at  Private 

Sale. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  The Company ,  Guardian  of  the 

Estate  of ,  a  minor,  respectfully  represents : 

1.  by  indenture  bearing  date  the day  of , 

and  recorded  in  the  office  for  recording  of  deeds  in  and  for  the 

City  and  County  of  Philadelphia,  in  deed  book    ,    etc., 

granted  and  conveyed  unto ,  (insert  description)  : 

being  known  as  premises Street,  Philadelphia. 

2.  being  so  seized  of  said  premises  died  on  the 

day  of  ,  intestate,  leaving  to  survive  her,  her  husband, 

and  her  daughter, ,  as  her  only  heirs  so  that  title 

to  said  premises  is  now  vested  in  the  said ,  and  the  said 

,  each  an  undivided  one-half  share. 

3.  Your  petitioner  was  duly  appointed  guardian  of  the  estate 

of  the  said  minor  ,  by  decree  of  your  Honorable  Court, 

dated . 

4.  is  living  and  of  full  age. 

5.  Subject  to  the  approval  of  your  Honorable  Court  the  prem- 


FORMS  64  571 

ises  above  described  have  been  sold  at  private  sale  to ,  for 

the  price  or  sum  of  $ in  cash. 

6.  Said  premises  consist  of  a  lot  —  feet  —  inches  by  —  feet, 
on  the  northeast  corner  of and Streets,  Philadel- 
phia, on  which  is  erected  a  three-story  brick  dwelling,  built  about 
fifty  years  ago,  containing  twelve  rooms  and  no  modern  improve- 
ments.    The  property  is  in  rather  poor  condition  and    is    now 
vacant.    If  placed  in  good  condition  with  modern  improvements, 

it  would  probably  rent  for  approximately  $ per  month, 

but  your  petitioner  is  without  funds  in  the  estate  of  the  said 
minor  to  provide  the  said  improvements  and  it  is  the  desire  of 
your  petitioner  and  the  said ,  the  only  other  party  in  in- 
terest, to  sell  the  said  premises  and  invest  the  proceeds  so  that 
an  income  will  be  available  for  the  benefit  of  the  said  minor, 
rather  than  continue  it  in  its  present  condition,  whereby  a  very 
small  rent  could  be  obtained  as  against  heavy  fixed  charges  with 
a  consequent  loss  to  the  estate  of  the  said  minor. 

7.  Your  petitioner  therefore  is  of  the  opinion  that  the  price 
offered  for  the  said  real  estate  is  full  and  fair  and  better  than 
could  be  obtained  for  the  same  at  public  sale  and  that  it  would 
be  for  the  best  interest  and  advantage  of  the  estate  of  the  said 

minor,  ,  that  the  said  sale  be  consummated  in  accordance 

with  the  terms  hereinabove  set  forth  because  the  price  offered 
is  better  than  could  be  obtained  at  public  sale  and  because  it 
would  be  necessary  to  have  partition  proceedings  to  separate  the 
ownership  of  the  various  persons  interested  and  by  making  the 
sale  to  the  said  purchaser,  the  expense  and  delay  of  partition 
proceedings  can  be  avoided,  and  that  it  is  not  likely  that  the  prop- 
erty will  increase  in  value  within  the  time  necessary  for  the  par- 
tition proceedings,  that  the  sale  may  be  made  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same  is 
held  and  without  the  violation  of  any  law  which  may  confer  an 
immunity  or  exemption  from  sale  or  alienation. 

8.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts  experienced  in  the  values  of   properties  in  the 
neighborhood  of  those  hereinabove  referred  to  that  the  price 
offered  for  the  same  is  full  and  fair  and  the  best  that  could  be 
obtained  at  public  sale.    Their  affidavits  to  this  effect  are  hereto 
annexed  as  Exhibits  "A"  and  "B." 

9.  That  all  parties  interested  in  the  said  estate  as  hereinabove 
set  forth,  are  satisfied  that  the  price  offered  for  the  said  prem- 


572  FORMS  64 

ises  is  a  full  and  fair  one  and  beter  than  could  be  obtained  at 
public  sale  and  that  the  acceptance  of  the  same  will  be  for  the 
best  interests  of  the  estate.  The  said  parties  have  received  notice 
of  the  intended  presentation  of  this  petition  and  have  joined  in 
the  prayer  thereof. 

10.  That  the  said  premises  are  assessed  for  taxation  in  the 
sum  of  $ ,  as  appears  by  the  official  certificate  hereto  an- 
nexed marked  Exhibit  "C." 

11.  Your  petitioner  has  no  power  of  sale  and  therefore  pre- 
sents this  petition  to  your  Honorable  Court  to  obtain  its  consent 
thereto. 

12.  Your  petitioner  therefore  prays  your  Honorable  Court  for 
leave  and  authority  to  join  in  the  sale  and  conveaynce  of  the 

premises  herein  described  to  the  said ,  for  the  price  or  sum 

of  $ ,  in  cash ;  said  conveyance  to  vest  the  title  in  the  pur- 
chaser in  fee  simple,  freed  and  discharged  of  all  trusts,  contin- 
gencies and  remainders  and  indefeasible  by  any  party  or  per- 
sons having  a  present  or  expectant  interest  therein  in  accordance 
with  the  Act  of  Assembly  in  such  case  made  and  provided. 

And  your  petitioner  will  ever  pray,  etc. 


The Company ,  Guardian 

of  the  Estate  of} ,  a  minor, 

By 

State  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner,  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  and  correct  to  the 
best  of  his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  a  minor. 

Term, ,  No. . 


FORMS  64,  65  573 

DECREE. 

And  Now,  to  wit,  this  day  of  a ,  1921,  on  con- 
sideration of  the  annexed  petition  and  affidavits  thereto  annexed 
and  on  motion  of ,  attorneys  for  the  petitioner,  it  appear- 
ing that  it  would  be  to  the  best  interest  and  advantage  of  the 

estate  of  ,  a  minor,  that  the  premises  described  in  the 

petition  should  be  sold  to at  private  sale  for  the  sum  of 

$ ,  in  cash  and  that  the  said  price  is  better  than  can  be 

obtained  at  public  sale  and  that  the  same  may  be  done  without 
injury  or  prejudice  to  any  trust,  charity  or  purpose  for  which 
the  same  is  held  and  without  the  violation  of  any  law1  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation,  It  is 
ordered  and  decreed  that  the  said  sale  be  confirmed  and  that  the 

said  The  Company  ,  Guardian  of  the  Estate  of 

,  is  hereby  authorized  and  empowered  to  join  in  the  sale 

and  conveyance  of  the  said  premises,  to  wit,  (description)  : 
being  known  as  premises Street,  Philadelphia,  to 


for  the  price  or  sum  of  $ ,  in  cash;  the  title  of  the  pur- 
chaser to  be  a  fee  simple  title,  indefeasible  by  any  party  or  per- 
sons having  a  present  or  expectant  interest  in  the  said  premises 
and  unprejudiced  by  any  error  in  the  proceedings  of  the  Court ; 

security  to  be  entered  in  the  sum  of  $ ,  and  the  bond  of 

the  said  The Company ,  is  hereby  approved  as  such 

security. 

By  the  Court : 


65.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  TRUSTEE  FOR  LEAVE  TO  SELL  AN  IRRE- 
DEEMABLE GROUND  RENT  AT  PRIVATE 
SALE.  183. 

In  the  Orphans'  Court  for  the  County  of  Philadelphia. 

In  re  Estate  of ,  Deceased. 

-  Term,  -       — ,  No.  -       — 

Petition  for  Leave  to  Sell  Ground  Rent  at  Private  Sale. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  the  Acme  Trust  Company,  Trustee  under  the 
will  of ,  Deceased,  respectfully  represents : 


574  FORMS  6s 

1.  That ,  late  of  the  City  and  County  of  Philadelphia, 

died  ,  having  first  made  and  published  his  last  will  and 

testament,  duly  probated  in  the  office  of  the  Register  of  Wills 
in  and  for  the  County  of  Philadelphia. 

2.  In  and  by  said  will  testator  (here  recite  pertinent  provisions 
of  will)  : 

A  copy  of  the  will  of  • is  annexed  hereto  and 

marked  Exhibit  "A"  and  made  a  part  hereof. 

3.  (Recite  here  parties  in  interest  and  how  acquired.) 

4.  That  among  the  assets  of  the  residuary  estate  of  the  above 
decedent  is  the  following  described  irredeemable  ground  rent,  to 
wit:  (give  here  description  in  latest  deed)  : 

being  the  same  ground  rent  that  was  acquired  inter  alia  by  the 

said by  indenture  bearing  date  the day  of , 

and  recorded  at  Philadelphia,  in  Deed  Book ,  No. , 

page  ,  etc.,  being  now  known  as  premises Street, 

in  the  City  of  Philadelphia. 

5.  That  a  sale  of  the  aforesaid  irredeemable  ground  rent  has 
been  made  subject  to  the  approval  of  your  Honorable  Court  to 
,  for  the  price  or  sum  of  $ in  cash. 

6.  That  although  there  is  a  power  of  sale  under  the  will  of 

,  deceased,  your  petitioner  is  advised  that  said  power  does 

not  cover  the interest  of ,  and  her  husband  and  the 

interest  of ,  and  his  wife,  purchased  by  your  peti- 
tioner by  virtue  of  proceedings  duly  had  in  this  Court.     This 
petition  is  therefore  presented. 

7.  Your  petitioner  has  been  assured  by  real  estate  experts 
familiar  with  the  values  of  real  estate  in  the  vicinity  that  the 

price  or  sum  of  $ is  a  full  and  fair  price  for  the  said 

ground  rent  and  is  more  than  could  be  obtained  therefor  at  public 
sale.    Their  affidavits  are  attached  hereto  and  made  part  hereof 
as  Exhibits  "B"  and  "C." 

8.  That  the  said  property  out  of  which  the  said  ground  rent 

is  payable  is  assessed  in  the  sum  of  $ ,  as  will  appear  by 

the  official  certificate  of  the  Board  of  Revision  of  Taxes  hereto 
annexed  as  Exhibit  "D." 

9.  That  your  petitioner  is  of  the  opinion  that  it  is  for  the 
best  interest  and  advantage  of  the  said  estate  to  sell  the  said 
ground  rent  as  herein  set  forth. 


FORMS  65  575 

10.  That  all  of  the  parties  in  interest  as  hereinabove  set  forth 
have  joined  in  the  prayer  of  this  petition. 

11.  That  the  said  sale  may  be  made  without  injury  or  preju- 
dice to  any  trust,  charity  or  purpose  for  which  the  same  is  held 
and  without  the  violation  of  any  law  which  may  confer  immu- 
nity or  exemption  from  sale  or  alienation. 

Wherefore  your  petitioner  being  without  authority  as  afore- 
said to  make  sale  of  said  ground  rent  without  the  order  of  your 
Honorable  Court,  makes  this  application  under  the  Revised 
Price  Act  of  1917,  and  prays  for  leave  and  authority  to  sell, 
assign  and  convey  the  said  ground  rent  hereinbefore  described  to 
,  upon  receipt  of  the  purchase  price  of  $ ,  said  con- 
veyance to  vest  the  title  of  the  said  ground  rent  in  the  said 
,  freed  and  discharged  of  all  trusts,  contingencies  and  re- 
mainders and  indefeasible  by  any  party  or  persons  having  a 
present  or  expectant  interest  therein,  in  accordance  with  the 
provisions  of  the  Act  of  Assembly  in  such  case  made  and  pro- 
vided. 

And  your  petitioner  will  ever  pray,  etc. 

ACME  TRUST  COMPANY, 
By 


Trustee  under  the  Will  of ,  Deceased. 

County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner,  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 


JOINDER. 

We,  the  undersigned,  being  all  parties  presently  interested  in 

the  estate  of  ,  acknowledge  that  we  have  received  notice 

of  the  presentation  of   the   foregoing  petition   and  join  in  the 
prayer  thereof. 


576  FORMS  65 

EXHIBIT  "B." 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  a  real  estate  expert  of  years'  experience;  that 

he  is  familiar  with  the  values  of  real  estate  in  the  city  of  Phila- 
delphia ;  that  he  has  examined  the  premises  described  in  the  fore- 
going petition  and  in  his  opinion  the  price  or  sum  of  $ , 

offered  for  the  said  ground  rent  is  a  full  and  fair  price  therefor, 
and  more  than  could  be  obtained  for  the  same  at  public  sale. 

And  further  deponent  saith  not. 

Sworn  to  and  subscribed  before  me  this 

day  of ,  1920. 

EXHIBIT  "C." 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  a  real  estate  expert  of years'  experience;  that 

he  is  familiar  with  the  values  of  real  estate  in  the  city  of  Phila- 
delphia ;  that  he  has  examined  the  premises  described  in  the  fore- 
going petition  and  in  his  opinion  the  price  or  sum  of  $ , 

offered  for  the  said  ground  rent  is  a  full  and  fair  price  therefor, 
and  more  than  could  be  obtained  for  the  same  at  public  sale. 

And  further  deponent  saith  not. 

Sworn  to  and  subscribed  before  me  this 

day  of ,  1920. 

DECREE. 

And  Now,  to  wit,  this day  of ,  1920,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 

attorneys  for  the  petitioner,  it  appearing  that  it  will  be  to  the 
interest  and  advantage  of  all  the  parties  interested  therein  that 
the  said  ground  rent,  to  wit:  (repeat  description  here)  : 
being  now  known  as  premises Street,  in  the  city  of  Phila- 
delphia, should  be  sold  to  ,  for  the  sum  of  $ ,  in 

cash ;  that  the  said  sum  is  a  better  price  than  could  be  obtained 
at  public  sale;  that  the  same  may  be  made  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  same 
is  held  and  without  the  violation  of  any  law  which  may  confer 
immunity  or  exemption  from  sale  or  alienation,  the  Court  grants 


FORMS  65,  66  577 

the  prayer  thereof  and  authorizes  and  empower^  the  Acme  Trust 

Company,  trustee  under  the  will  of  ,  deceased,  to  sell, 

convey  and  assign  the  said  ground  rent  to  the  said ,  upon 

receipt  of  the  purchase  price,  the  title  of  the  purchaser  to  be  a 
fee  simple  title,  indefeasible  by  any  party  or  persons  having  a 
present  or  expectant  interest  therein  and  freed  and  discharged 
of  all  remainders  and  unprejudiced  by  any  error  in  the  proceed- 
ings of  the  Court.  Security  to  be  entered  in  the  sum  of  $ , 

the  bond  of  the  said  Acme  Trust  Company  is  hereby  approved 
as  such  security. 

By  the  Court : 


J. 

66.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  TRUSTEE  FOR  LEAVE  TO  ASSIGN  AND 
EXTINGUISH  AN  IRREDEEMABLE  GROUND 
RENT  ON  A  THREE  PER  CENT.  BASIS.  183. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

Term, ,  No. . 

Petition  for  Leave  to  Assign  and  Extinguish  Irredeemable 
Ground  Rent. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  The Company ,  respectfully  rep- 
resents : 

i.  That died  in ,  seized  of  all  that  certain  yearly 

rent  or  sum   of  $ ,  lawful   silver  money  of  the  United 

States  of  America,  payable  in  equal  half  yearly  payments  on  the 

first  days  of  the  months  of and ,  in  each  and  every 

year  after  the  day  of  ,  forever,  excepted  and  re- 
served out  of  (recite  here  description  from  last  deed)  : 
being  known  as and Street,  and Street,  Philadel- 
phia, which  premises  were  conveyed  by  the  said to , 

by  indenture  dated  the  day  of  ,  and  "recorded  in 

Philadelphia,  in  Deed  Book  ,  page  ,  &c.,  and  the 

said ,  in  and  by  her  will  dated  ,  duly  probated  in 

Philadelphia   devised   and  bequeathed   certain  property  therein 
37 


578  FORMS  66 

mentioned,  including  the  aforesaid  ground  rent  to  her  trustees 

in  trust  for ,  for  life  with  power  of  appointment  and  the 

said  died  ,  having  first  made,  published  and  de- 
clared her  last  will  and  testament  dated ,  a  copy  of  which 

is  hereto  annexed  marked  Exhibit  "A,"  duly  probated  in  Phila- 
delphia County,  as  will ,  and-  recorded  in  Will  Book , 

page  ,  and  the  said  ,  in  and  by  her  said  will  did 

give,  devise  and  bequeath  property  over  which  she  had  power  of 
appointment,  including  said  ground  rent,  to  your  petitioner  in 
trust  for  the  benefit  of  her  daughters  for  life,  subject  to  annui- 
ties of  $ ,  each  to  her  two  sons  with  power  in  the  daughters 

of  continuing  the  trust  for  their  children  if  they  think  proper 
and  in  further  trust  if  any  of  her  children  should  die  leaving 
lawful  issue  then  living,  such  children  to  take  their  respective 
parent's  share. 

2.  The  said was  survived  by  her  husband, ,  since 

deceased,  and  by  five  children,  to  wit:  ,  all  of  whom  are 

living  and  of  full  age,  except ,  who  died ,  intestate, 

unmarried  and  without  issue.    The  surviving  four  children  of  the 
decedent  have  no  issue  so  that  they  are  the  only  parties  inter- 
ested in  this  estate. 

3.  The  present  owner  of  the  fee  simple  title  to  the  said  prem- 
ises is  ,  who  has  offered  to  purchase  and  extinguish  the 

said  ground  rent  for  the  sum  of  $ ,  in  cash  and  subject  to 

the  approval  of  your  Honorable  Court,  your  petitioner  has  agreed 

to  assign  and  extinguish  the  said  ground  rent  to  the  said 

for  the  price  aforesaid  which  is  on  a  basis  of  three  per  cent. 

4.  Your  petitioner  believes  that  it  will  be  to  the  best  interest 

and  advantage  of  the  estate  of  the  said  to  assign  and 

extinguish  the  said  ground  rent  for  the  aforesaid  consideration 
as  by  doing  so  the  income  to  the  estate  can  be  practically  doubled. 

5.  The  said  premises  are  assessed  in  the  sum  of  $ ,  as 

will  appear  from  the  official  certificate  of  the  Board  of  Revision 
of  Taxes  hereto  annexed  marked  Exhibit  "B." 

6.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts  familiar  with  the  values  of    real    estate    in    the 

vicinity  of  the  premises  that  the  sum  of  $ in  cash  is  a  full 

and  fair  price  for  the  same  and  more  than  could  be  obtained  there- 
for at  public  sale  and  their  affidavits  to  this  effect  are  attached 
hereto  and  made  a  part  hereof  as  Exhibits  "C"  and  "D." 


FORMS  66  579 

7.  That  your  petitioner,  under  the  terms  of  the  said  will,  is 
without  authority  to  make  sale  of  such  ground  rent  without  the 
consent  of  your  Honorable  Court  and  by  reason  thereof  this 
petition  is  presented. 

Wherefore  your  petitioner  prays  for  leave  to  sell  and  extinguish 

the  ground  rent  hereinbefore  described  to  ,  upon  receipt 

of  the  purchase  price,  to  wit:  $ in  cash;  said  conveyance 

to  vest  the  title  of  the  said  ground  rent  in  the  said  purchaser, 
freed  and  discharged  of  all  trusts,  contingencies  and  remainders, 
indefeasible  by  any  party  or  persons  having  a  present  or  expectant 
interest  therein  in  accordance  with  the  provisions  of  the  Act  of 
Assembly  in  such  case  made  and  provided. 

And  your  petitioner  will  ever  pray,  etc. 

THE COMPANY . 

By 


State  of  Pennsylvania,  County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the of  the  corporation  petitioner,  and  that  the 

facts  set  forth  in  the  foregoing  are  true  to  the  best  of  his  knowl- 
edge, information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 

We,  the  undersigned,  being  all  the  parties  interested  in  the 
estate  of ,  deceased,  hereby  acknowledge  that  we  have  re- 
ceived notice  of  the  presentation  of  the  foregoing  petition  and  join 
in  the  prayer  thereof. 

EXHIBIT  "C." 
State  of  Pennsylvania,  County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  a  real  estate  expert  of years'  experience;  with 

an  office  at  ,  Philadelphia;  that  he  is  familiar  with  the 

values  of  real  estate  in  the  City  of  Philadelphia;  that  he  has 
examined  the  premises  described  in  the  foregoing  petition  and 
in  his  opinion  the  price  or  sum  of  $ in  cash  offered  for  the 


580  FORMS  66 

ground  rent  reserved  thereout  is  a  full  and  fair  price  therefor, 
and  more  than  could  be  obtained  for  the  same  at  public  sale. 
And  further  deponent  saith  not. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

Term, ,  No. . 

DECREE. 

And  Now,  to  wit,  this day  of 1921,  upon  considera- 
tion of  the  annexed  petition  and  affidavits  thereto  attached,  and  on 

motion  of  ,  attorneys  for  the  petitioner,  it  appearing  that 

it  will  be  to  the  interest  and  advantage  of  the  estate  of , 

deceased,  that  the  said  yearly  rent  of   $ ,  lawful  silver 

money,  payable  half  yearly  on  the  first  days  of  the  months  of 

and ,  in  each  and  every  year  after  the day 

of ,  forever,  excepted  and  reserved  out  of  (description  of 

property)  : 

being  known  as  and  Street,  and  Street, 

should  be  sold,  assigned  and  extinguished  to for  $ 

in  cash  and  it  further  appearing  that  the  same  may  be  made  with- 
out injury  or  prejudice  to  any  trust,  charity  or  purpose  for  which 
the  same  is  held  and  without  the  violation  of  any  law  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation  and  that 

the  said  sum  of  $ in  cash  is  a  better  price  than  could  be 

obtained  for  the  same  at  public  sale,  It  is  ordered  and  decreed 

that  the   said   sale  by  The  Company  ,   Trustee 

under  the   will   of  ,   deceased,   as  aforesaid,  be   and   the 

same  is  hereby  confirmed  and  the  said  The  Company 

,  Trustee  as  aforesaid,  is  hereby  authorized  and  em- 
powered, upon  receipt  of  said  sum  of  $ ,  and  all  arrear- 
ages of  ground  rent  to  the  day  of  settlement,  to  convey  the 

said   ground    rent    to    ,    the    title    of    the    purchaser    to 

be  in  fee  simple,  indefeasible  by  any  party  or  persons  hav- 
ing a  present  or  expectant  interest  in  the  said  premises  and 
unprejudiced  by  any  error  in  the  proceedings  of  the  Court;  secu- 


FORMS  66,  67  581 

rity  to  be  entered  in  the  sum  of  $ ,  and  the  bond  of  the  said 

The Company ,  is  hereby  approved  as  such  security. 

By  the  Court : 


J- 

67.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  A  GUARDIAN  FOR  THE  APPOINTMENT  OF 
A  TRUSTEE  TO  MAKE  PRIVATE  SALE  OF 
REAL  ESTATE  IN  WHICH  THE  MINOR  HAS  AN 
INTEREST.  185. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

Term, ,  No. . 

Petition  for  Appointment  of  Trustee  to  Make  Sale  of  Real  Estate 
Under  the  Revised  Price  Act  of  1917. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of respectfully  represents: 

1.   ,  the  above  decedent,  died ,  intestate,  leaving 

to  survive  her  her  husband, ,  your  petitioner  and  one  child,  a 

minor, ,  and  no  other  children  or  issue  of  deceased  children. 

2.  That  Trust  Company    has    been    duly    appointed 

guardian  of  the  estate  of  the  said  minor    by   your    Honorable 
Court. 

3.  The  said  decedent  died  seized  and  possessed  of  (describe 
property)  : 

under  and  subject  to  certain  building  restrictions  therein  men- 
tioned and  also  subject  to  the  payment  of  a  certain  mortgage  debt 

or  principal  sum  of  $ ,  together  with  interest  thereon  as 

therein  mentioned,  said  premises  being  known  as Street, 

Philadelphia,  and  being  the  same  premises  that by  deed 

dated ,  and  recorded  at  Philadelphia,  in  Deed  Book , 

page ,  &c.,  granted  and  conveyed  unto  the  said in 

fee. 

4.  Title  to  the  said  premises  is  vested  in  the  said  minor  subject 
to  the  life  estate  of  her  father, . 

5.  Subject  to  the  approval  of  your  Honorable  Court,  the  prem- 
ises above  described  have  been  sold  at  private  sale  to ,  for 


582  FORMS  67 

the  price  or  sum  of  $ ,  payable  $ in  cash  and  $ 

at  the  expiration  of  five  years,  secured  by  a  bond  and  mortgage 
in  the  usual  form  with  interest  at  6,  per  cent,  per  annum,  said 

mortgage  of  $ now  on  said  premises  with  interest  accrued 

thereon  to  be  paid  out  of  said  purchase  price  at  time  of  settle- 
ment. 

6.  Your  petitioner  is  of  the  opinion  that  the  price  offered  for 
the  said  real  estate  is  full  and  fair  and   better   than   could   be 
obtained  for  the  same  at  public  sale  and  that  it  would  be  for  the 
best  interest  and  advantage  of  the  estate  of  the  said  minor  that 
the  said  sale  be  consummated  in  accordance  with  the  terms  here- 
inabove  set  forth  because  the  price  offered  is  better  than  could 
be  obtained  at  public  sale,  that  the  sale  may  be  made  without 
injury  or  prejudice  to  any  trust,  charity  or  purpose  for  which  the 
same  is  held  and  without  the  violation  of  any  law  which  may 
confer  an  immunity  or  exemption  from  sale  or  alienation. 

7.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts  experienced  in  the  values    of    properties    in   the 
neighborhood   of   that   hereinabove   referred   to  that   the   price 
offered  for  the  same  is  full  and  fair  and  the  best  that  could  be 
obtained  at  public  sale.    Their  affidavits  to  this  effect  are  hereto 
annexed  as  Exhibits  "A"  and  "B." 

8.  That  the  only  party  interested  in  the  said  estate  of  the  said 
decedent  other  than  your  petitioner,  to  wit :  the  said  minor,  by  her 
guardian  is  satisfied  that  the  price  offered  for  the  said  premises, 
payable  as  aforesaid,  is  a  full  and  fair  one  and  better  than  could 
be  obtained  at  public  sale  and  that  the  acceptance  of  the  same  will 
be  for  the  best  interest  and  advantage  of  the  estate  of  the  said 
minor.     The  said  minor  by  her  guardian  has  received  notice  of 
the  intended  presentation  of  this  petition  and  has  joined  in  the 
prayer  thereof. 

9.  That  the  said  premises  are  assessed  for  taxation  in  the  sum 

of  $ as  appears  by  the  official  certificate  hereto  annexed 

marked  Exhibit  "C." 

10.  Your  petitioner  presents  this  petition  to  your  Honorable 
Court  under  Section  6  of  the  Revised  Price  Act  of  1917,  for  the 
confirmation  of  said  sale  and  the  appointment  of  a  trustee  to 
make  sale  of  the  said  premises  and  to  receive  and  hold  the  pro- 
ceeds of  said  sale  in  trust  for  the  parties  in  interest  therein  until 


FORMS  67  583 

the  termination  of  your  petitioner's  life  estate  and  thereupon  to 
pay  over  the  principal  sum  to  the  person  or  persons  entitled 
thereto. 

Wherefore  your  petitioner  prays: 

1 .  That  said  private  sale  to be  confirmed. 

2.  That  The  Company  ,  be  appointed  trustee 

to  carry  out  the  said  sale  and  convey  the  said  premises. 

3.  That  the  said  The  Company  ,   be   authorized, 

empowered  and  directed  as  such  trustee  to  convey  the  said  prem- 
ises hereinabove  set  forth  to  the  said  — —  for  the  price  or  sum  of 

$ ,  payable  $ in  cash  and  $ at  the  expiration 

of  five  years,  secured  by  a  bond  and  mortgage  in  the  usual  form 

with  interest  at  6  per  cent,  per  annum,  said  mortgage  of  $ 

now  on  said  premises  with  interest  accrued  thereon  to  be  paid 
out  of  said  purchase  price  at  time  of  settlement,  and  to  receive 
and  hold  the  proceeds  of  such  sale  in  trust  for  the  parties  in 
interest  therein  and1  invest  the  same  in  investments  authorized  by 

law  and  pay  the  interest  thereof  as  it  shall  accrue  to for 

life  until  the  said  life  estate  shall  have  terminated  and  thereupon 
to  pay  over  the  principal  sum  to  the  person  or  persons  entitled 
to  such  remainder,  the  title  of  the  purchaser  to  be  indefeasible  by 
any  persons,  ascertained  or  unascertained,  or  any  person  or  class 
of  persons  mentioned  in  this  petition  or  decree   and   having   a 
present  or  expectant  interest  in  the  premises  and  unprejudiced  by 
any  error  in  the  proceedings  of  the  Court. 

And  your  petitioner  will  ever  pray,  &c. 


State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the  petitioner  herein  and  that  the  facts  set  forth  in  the 
foregoing  petition  are  true  to  the  best  of  his  knowledge,  informa- 
tion and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


584  FORMS  67 

JOINDER. 

I,  the  undersigned,  being  the  only  party  interested  in  the  prem- 
ises referred  to  in  the  foregoing  petition,  other  than  your  peti- 
tioner, hereby  acknowledge  that  I  have  received  notice  of  the 
intended  presentation  of  foregoing  petition  and  join  in  the  prayer 
thereof. 

By 


Guardian. 


EXHIBIT  "A." 


Commonwealth  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

Personally  appeared ,  who,  being  duly  sworn  according 

to  law,  deposes  and  says  that  he  is  a  real  estate  expert  of 

years'  experience,  now  engaged  in    business    at    ;    that 

during  said  period  he  has  been  engaged  in  actively  carrying  on 
his  profession  in  the  County  of  Philadelphia ;  that  he  is  familiar 
with  the  values  of  real  estate  in  the  vicinity  of  the  real  estate 
referred  to  in  the  foregoing  petition;  that  he  has  examined  the 
premises  therein  described  and  as  the  result  of  said  examination 
is  of  the  opinion  that  the  sum  of  $ ,  payable  as  in  said  peti- 
tion set  forth,  represents  the  full  market  value  of  the  said  prem- 
ises and  is  a  greater  price  than  could  be  obtained  for  the  same  at 
public  sale,  and  that  a  sale  thereof  at  the  said  price  would  be  to 
the  best  interest  and  advantage  of  said  estate. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  estate  of ,  deceased. 

Term, ,  No. . 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  on  motion  of  , 

attorneys  for  the  petitioner,  it  appearing  that  it  will  be  to  the 
interest  and  advantage  of  the  estate  of ,  a  minor,  and  all 


FORMS  67  585 

parties  interested  in  the  estate  of ,  deceased,  that  the  said 

premises,  to  wit  (description)  : 

under  and  subject  to  certain  building  restrictions  therein  men- 
tioned and  also  subject  to  the  payment  of  a  certain  mortgage  debt 

or  principal  sum  of  $ ,  together  with  interest  thereon  as 

therein  mentioned,  said  premises  being  known  as Street, 

Philadelphia,  should  be  sold    to  for    $ ,    payable 

$ in  cash  and  $ at  the  expiration  of  five  years,  se- 
cured by  a  bond  and  mortgage  in  the  usual  form,  with  interest  at 

6  per  cent,  per  annum,  said  mortgage  of  $ now  on  said 

premises  with  interest  accrued  thereon  to  be  paid  out  of  said 

purchase  price  at  time  of  settlement ;  that  the  said  sum  of  $ 

is  a  better  price  than  could  be  obtained  at  public  sale,  that  the 
same  may  be  made  without  injury  or  prejudice  to  any  trust, 
charity  or  purpose  for  which  the  same  is  held  and  without  the 
violation  of  any  law  which  confer  an  immunity  or  exemption  from 
sale  or  alienation,  It  is  hereby  ordered  and  decreed: 

1.  That  the  said  private  sale  to be  and  the  same  hereby 

is  confirmed. 

2.  That  The  Company  ,  be  and  the  same  is 

hereby  appointed  trustee  to  carry  out  the  said  sale  and  convey 
the  said  premises. 

3.  That  the  said  The Company ,  be  and  the  same  is 

hereby    authorized,    empowered    and    directed    as    such    trustee 
to  convey  the  said  premises  hereinabove  set  forth    to    the    said 

for  the  price  or  sum  of  $ ,  payable  $ in  cash 

and  $ at  the  expiration  of  five  years,  secured  by  a  bond 

and  mortgage  in  the  usual  form,  with  interest  at  6  per  cent,  per 

annum,  said  mortgage  of  $ now  on  said  premises  with 

interest  accrued  thereon  to  be  paid  out  of  said  purchase  price  at 
time  of  settlement  and  to  receive  and  hold  the  proceeds  of  such 
sale  in  trust  for  the  parties  in  interest  therein  and  invest  the  same 
in  investments  authorized  by  law  and  pay  the  interest  thereof  as 

it  shall  accrue  to  ,  for  life  until  the  said  life  estate  shall 

have  terminated  and  thereupon  to  pay  over  the  principal  sum  to 
the  person  or  persons  entitled  to  such  remainder,  the  title  of  the 
purchaser  to  be  indefeasible  by  any  person,  ascertained  or  unas- 
certained or  any  person  or  class  of  persons  mentioned  in  the  fore- 
going petition  or  this  decree  and  having  a  present  or  expectant 
interest  in  the  premises  and  unprejudiced  by  any  error  in  the 


586  FORMS  67,  68 

proceedings  of  the  Court;  security  to  be  entered  in  the  sum  of 

$ ,  and  the  bond  of  the  said  The Company , 

is  hereby  approved  as  such  security. 
By  the  Court : 


J- 

68.  PETITION  UNDER  THE  REVISED  PRICE  ACT 
BY  TRUSTEES  FOR  LEAVE  TO  SELL  REAL 
ESTATE  AT  PRIVATE  SALE  AND  BY  A  CO- 
TRUSTEE  TO  PURCHASE  AT  SUCH  SALE.  202. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

Term, ,  No. . 

Petition  by  Trustees  for  Leave  to  Sell  Real  Estate  at  Private 

Sale,  and  by  Co-Trustee  to  Purchase  at  Such  Sale. 
To  the  Honorable,  the  Judges  of  the  Said  Court: 

The    petition    of    ,    Trustee,    and   ,    substituted 

Trustee,  under  the  last  will  of    ,    deceased,    respectfully 

represents : 

1.  That  the  said  decedent, ,  died  on  the day  of 

,  having  first  made,  published,  and  declared  his  last  will 

and  testament,  a  copy  of  which  is  annexed  hereto  as  Exhibit  "A," 

dated ,  duly  probated  in  the  office  of  the  Register  of  Wills, 

of  Philadelphia  County,  wherein  and  whereby  he  did  devise  and 
bequeath  the  residue  of  his  estate  to  his  trustees  in  trust  after  the 

death  of  his  wife, ,  (she  died ),  to  (recite  terms  of 

trust)  : 

2.  That  the  decedent  nominated  the Company , 

and ,  as  trustees  and  the  said Company  renounced 

its  right  to  act  as  such  trustee,  and  by  decree  of  your  Honorable 

Court  dated ,  it  was  discharged  as  such  trustee  and 

was  appointed  substituted  and  co-trustee  in  its  place  and  stead. 

That  among  the  assets  of  the  said  decedent  are  premises 

Avenue,  ,  Philadelphia,  occupied  and  used  in  part  by  the 

said ,  trading  as . 

That  the  said desires  to  purchase  the  said  property  from 

the  estate  for  the  price  or  sum  of  $ ,  but  being  a  purchase 


FORMS  68 


587 


by  a  trustee  at  his  own  sale,  the  power  of  sale  given  the  trustee 
under  the  will  is  inoperative  and  it  is  necessary  that  he  obtain  the 
approval  of  your  Honorable  Court  in  so  doing. 

3.  That  among  the  assets  of  the  said  estate  are  the  following 
described  parcels  of  real  estate  in  the  City  of  Philadelphia  (de- 
scribe them) : 

4.  Parcels  I  to  9  hereinabove  recited  now  comprise  one  lot 

of  ground  fronting feet  on Avenue,  and  extending 

feet  along Street,  and  are  occupied  by  one  large 

four-story  brick  building  occupied  by  the . 

Parcels  10  and  16  to  20  inclusive,  comprise  one  property  front- 
ing    on  Street,  and  extending  through  to 


Street, 


feet,  and  are  occupied  by  a  stable  and 


garage  used  in  connection  with  the  said . 

Parcels  n  to  15  above  described  are  five  small  lots,  each  con- 
taining a  two-story  brick  cottage  with  frame  fronts  and  frame 
enclosed  sheds  set  back  from  the  street  with  front  and  side  yards. 

In  the  property  all  the  machinery,  fixtures  and  equip- 
ment are  owned  by ,  individually  as  a  part  of  the  business 

of  the ,  of  which  he  is  sole  proprietor.  The  real  estate  is 

rented  in  connection  with  the  for  $ per  annum, 


from  which    is    payable    taxes 
The  stable  and  garage  are 

—  for  $ per  annum, 

,  and  insurance  $ . 

—  Street  are  now  idle,  but 


at  an  annual  rental  of 

$ ,  and  insurance 

rented  in  connection  with  the 
from  which  is  payable  taxes 
The  5  cottage  properties  on 

heretofore  rented  at  $ per  annum,  from  which  has  been 

payable  taxes  $ ,  insurance  $ ,  and  repairs  on  an 

average  of  $ per  annum,  so  that  the  total  income  from  all 

sources  derived  from  the  real  estate  herein  described  has  been 

$ ,  and  the  annual  carrying  charges  $ per  year,  not 

including  the  interest  on  the  mortgage  of  $ ,  held  by  the 

Trust  Company  on  the  said  real  estate  at ,  so  that 

the  net  rent  of  the  properties  clear  of  encumbrances  would  be 

$ per  annum,  which  is on  a  valuation  of  $ . 

5.    Premises  to  Avenue  (parcels  i  to  9),  are 

assessed  at  $ ,  as  shown  by  the  official  certificate  hereto 

annexed  as  Exhibit  "B."     Premises  Street   (parcels  10 

and  1 6  to  20),  are  assessed  at  $ ,  as  shown  by  the  official 

certificate  hereto  annexed  as  Exhibit    "G."      Premises   


588  FORMS  68 

Street  (parcels  n  to  15),  are  assessed  at  $ ,  as  shown  by 

the  official  certificate  hereto  annexed  as  Exhibit  "D." 

6.  The  said was  survived  by  (recite  parties)  : 

7.  All  of  said  parties  in  interest,  the  same  being  all  the  parties 
having  any  interest  in  this  estate  have  received  notice  of  the  in- 
tended presentation  of  this  petition,  and  have    joined    in    the 
prayer  thereof. 

8.   ,  one  of  your  petitioners,  as  before  set  forth,  is  the 

proprietor  of  the  ,  which  occupies  and  uses  most  of  the 

premises  hereinabove  described  in  connection  with  its  business. 

The  boilers  used  in  connection  with  the were  installed  in 

,  and  are  about  worn  out  so  that  it  is  necessary  to  replace 

the  same  and  for  this  purpose  if  the  property  is  to  continue  under 
its  present  management  it  will  be  necessary  to  build  a  power 

house  on  parcels  n  to  15,  fronting  on  Street,  but  the 

estate  has  no  funds  with  which  to  make  the  necessary  repairs, 
improvements  and  additions  to  the  premises  in  order  to  continue 
them  in  tenantable  condition  for  the  uses  and  purposes  to  which 

they  are  now  devoted.    The  said has,  therefore,  offered 

to  buy  the  real  estate  hereinabove  described,  clear  of  encum- 
brance, for  the  price  or  sum  of  $ ,  $ in  cash  and 

the  balance  of  $ to  be  secured  by  a  mortgage  in  the  usual 

form,  payable  at years  at .    A  settlement  on  this 

basis  will  net  the  estate  approximately  $ per  annum,  as 

against  a  net  rent  on  the  present  investment  of  $ . 

9.  While  the  trustees  have  a  power  of  sale  under  the  will  of 
the  said  decedent,  one  of  the  trustees  desires  to  purchase  at  his 
own  sale,  and  it  is  necessary  that  the  consent  of  your  Honorable 
Court  be  secured  thereto. 

10.  Subject,  therefore,  to  the  approval    of    your    Honorable 
Court,  the  premises  hereinabove  described  together  with  the  build- 
ings and  improvements  thereon  erected  have  been  sold  at  private 
sale  to ,  for  the  price  or  sum  of  $ ,  clear  of  encum- 
brance,   from   which   is   to  be  paid   the   existing   mortgage   of 

$ ,  purchase  price  to  be  payable  $ in  cash  and  the 

balance  at  the  expiration  of  years,  to  be  secured  by  the 

bond  and  mortgage  of  the  purchaser  in  the  usual  form  at . 

11.  Your  petitioners  as  trustees  for  the  reasons  hereinabove 
set  forth  are  of  the  opinion  that  the  price  offered  for  the  said  real 
estate  is  full  and  fair  and  better  than  could  be  obtained  for  the 


FORMS  68  589 

same  at  public  sale,  and  that  it  would  be  for  the  best  interest  and 

advantage  of  the  estate  of  ,  and    the    parties    interested 

therein,  that  the  said  sale  be  consummated  in  accordance  with  the 
terms  hereinabove  set  forth,  because  the  price  offered  is  better 
than  could  be  obtained  at  public  sale,  and  that  the  sale  may  be 
made  without  injury  or  prejudice  to  any  trust,  charity,  or  purpose 
for  which  the  same  is  held  and  without  violation  of  any  law 
which  may  confer  an  immunity  or  exemption  from  sale  or  aliena- 
tion. 

12.  Your  petitioners  have  been  assured  by  two  real  estate  ex- 
perts, unrelated  to  the  parties,  and  unconnected  with  the  estate, 
and  having  no  interest  whatever  in  the  subject  matter  of  this 
petition,  and  the  said  experts,  being  experienced  in  the  values  of 
property  in  the  neighborhood  of  those  hereinabove  referred  to,  are 
of  opinion  that  the  price  offered  for  the  same  as  a  whole  is  full 
and  fair  and  better  than  could  be  obtained  at  public  sale,  and 
affidavits  to  this  effect  are  hereto  annexed  as  Exhibits  "E"  and 
"F." 

13.  That  all  parties  interested  in  the  said  estate  as  hereinabove 
set  forth  are  satisfied  that  the  price  offered  for  the  said  premises 
is  a  full  and  fair  one  and  better  than  could  be  obtained  at  public 
sale,  and  that  the  acceptance  of  the  same  will  be  for  the  best 
interest  and  advantage  of  the  said  estate. 

14.  ,  one  of  your  petitioners,  therefore,  prays  your  Hon- 
orable Court  for  leave  and  authority  to  purchase  the  premises 
hereinbefore  set  forth  which  are  described  as  a  whole  as  follows 
(description)  : 

from  the  estate  of ,  for  the  price  or  sum  of  $ ,  pay- 
able as  aforesaid;  and ,  substituted  trustee  under  the  will 

of ,  deceased,  one  of  your  petitioners,  prays  your  Honor- 
able Court  for  leave  and  authority  to  sell  and  convey  the  said 

premises,  ,  for  the  price  or  sum  of  $ ,  payable  as 

hereinabove  set  forth,  said  conveyance  to  vest  the  title  in  the 
purchaser  in  fee  simple,  freed  and  discharged  of  all  trusts,  con- 
tingencies and  remainders,  and  indefeasible  by  any  party  or  per- 
sons having  a  present  or  expectant  interest  therein  in  accordance 
with  the  Act  of  Assembly  in  such  case  made  and  provided. 
And  your  petitioners  will  ever  pray,  etc. 


590  FORMS  68 

State  of  Pennsylvania, 
City  of  Philadelphia,  ss: 

i  and ,  being  duly  sworn  according  to  law,  depose 

and  say  that  they  are  the  petitioners  herein  and  that  the  facts  set 
forth  in  the  foregoing  petition  are  true  and  correct  to  the  best  of 
their  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me 
this day  of  — : ,  1921. 


(Signatures.) 

JOINDER. 

We,  the  undersigned,  being  all  the  parties  interested  in  the 
premises  referred  to  in  the  foregoing  petition,  hereby  acknowl- 
edge that  we  have  received  notice  of  the  intended  presentation 
of  the  foregoing  petition  and  join  in  the  prayer  thereof. 

EXHIBIT  "E." 

Commonwealth  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

Personally  appeared ,  who,  being  duly  sworn  according 

to  law,  deposes  and  says  that  he  is  a  real  estate  expert  of 

years'  experience;  that  he  is  now  engaged  in  business  in  Phila- 
delphia;   ,  that  during  the  period  above  mentioned  he  has 

been  actively  engaged  in  carrying  on  his  profession  in  the  City 
and  County  of  Philadelphia;  that  he  is  familiar  with  the  values 
of  real  estate  in  the  vicinity  of  the  premises  referred  to  in  the 
foregoing  petition;  that  he  has  examined  the  premises  therein 
described  and  values  them  as  follows  (description  of  valuation)  : 
and  as  a  result  of  said  examination  is  of  the  opinion  that  the  sum 
of  $ ,  payable  $ in  cash,  and  $ at  the  expira- 
tion of  three  years,  secured  by  bond  and  mortgage  in  the  usual 
form,  at  6  per  cent,  per  annum  represents  the  full  market  value 
of  the  said  premises,  and  is  a  greater  price  than  could  be  obtained 
for  same  at  public  sale,  and  that  a  sale  thereof  at  the  said  price 
would  be  to  the  best  interests  and  advantage  of  the  said  estate. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


.FORMS  68  591 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

DECREE. 

And  Now,  the  day  of ,  on  consideration  of  the 

foregoing  petition  and  affidavits  thereto  annexed,  it  appearing 
that  all  of  the  cestuis  que  trustent  and  parties  in  interest  have 
joined  therein,  and  on  motion  of  ,  counsel  for  the  peti- 
tioners, it  appearing  that  it  will  be  to  the  interest  and  advantage 

of  the  trust  under  the  will  of  the  said ,  deceased,  as  well  as 

to  the  interest  and  advantage  of  the  said  cestuis  que  trustent  and 
all  other  parties  in  interest  thereunder  that  the  premises  described 
in  the  foregoing  petition,  to  wit,  (description)  : 

should  be  sold  to ,  for  the  sum  of  $ ,  of  which  sum 

$ shall  be  secured  by  a  purchase  money  mortgage  on  the 

above  described  premises  as  hereinafter  set  forth,  and  that  the 

said  price  of  $ is  a  better  price  than  the  same  would  bring 

at  public  sale,  and  it  further  appearing  that  the  same  may  be 
done  without  injury  or  prejudice  to  any  trust,  charity  or  purpose 
for  which  the  same  is  held  and  without  the  violation  of  any  law 
which  may  confer  immunity  or  exemption  from  sale  or  alienation ; 
It  is  ordered  and  decreed  that ,  trustee,  and  ,  sub- 
stituted trustee  under  the  will  of  ,  deceased,  be  and  they 

are  hereby  authorized  and  empowered  to  sell  and  convey  the  said 

premises  to  the  said  ,  as  an  individual,  for  the  price  of 

$ ,  payable  as  follows :  in  cash  the  sum  of  $ ,  and  the 

balance  of  $ to  be  secured  by  bond  and  mortgage  in  the 

usual  form,  payable  at  the  expiration  of years  from  the 

date  thereof  with  interest  thereon  at per    centum    per 

annum,  payable  half  yearly,  said  bond  and  mortgage  to  be  given 

and  executed  by  the  said as   an    individual    to   , 

trustee  and ,  substituted  trustee  under  the  will  of , 

deceased,  the  said  bond  and  mortgage  to  be  held  by  the  said 
trustees  under  the  same  trust  and  for  the  same  uses  and  purposes 
and  subject  to  the.  same  rights,  title  and  estate  as  the  said  prem- 
ises have  heretofore  been  held  by  the  said  trustees,  with  authority 
in  the  said  trustees  to  pay  out  of  the  said  settlement  the  present 
mortgage  debt  or  principal  sum  of  $ ,  now  a  valid  and  subsist- 
ing lien  on  the  said  premises,  with  interest  thereon  to  the  date  of 


592  FORMS  68 

settlement,  the  title  of  the  purchaser  to  be  a  fee  simple  title,  inde- 
feasible by  any  party  or  persons  having  a  present  or  expectant 
interest  in  the  said  premises,  and  unprejudiced  by  any  error  in  the 
proceedings  of  the  Court;  the  said  trustees  as  aforesaid,  first 
entering  security  as  hereinafter  directed. 

And  it  is  further  ordered  and  decreed  that  the  said — ,  one 

of  the  trustees  as  aforesaid,  be  authorized  and  permitted  to  pur- 
chase the  above  described  premises  from  ,  trustee,  and 

,  substituted  trustee  as  aforesaid,  for  the  sum  of  $ , 

first  paying  the  sum  of  $ in  cash,  and  executing  and  deliv- 
ering to  the  said ,  trustee,  and ,  substituted  trustee 

as  aforesaid,  his  purchase  money  bond  and  mortgage  in  the  just 
sum  of  $ ,  in  the  usual  form  and  containing  provisions  pro- 
viding for  the  payment  of  all  taxes,  water  rents,  insurance  pre- 
miums and  commissions,  and  having  also  previously  delivered  to 
the  said ,  trustee,  and ,  substituted  trustee  as  afore- 
said, fire  insurance  policies  in  approved  companies  with  the  usual 

mortgagee  clause  thereto  attached,  in  the  sum  of  at  least  $ ; 

said  bond  and  mortgage  to  be  secured  not  only  upon  the  above 
described  premises,  but  also  upon  any  addition  thereunto  made, 
and  upon  all  boilers,  engines,  machinery  and  equipment  now  or 

hereafter  belonging  to  the  said  ,  the  mortgagor,  located 

upon  the  abovd  described  premises  or  upon  any  addition  or  addi- 
tions hereinafter  erected  on  said  premises ;  and  upon  his  so  doing 
to  hold  the  said  premises  and  any  additions  thereto,  free  and 

clear  of  any  trusts  for  the  estate  of  the  said ,  deceased,  for 

any  parties  or  persons  having  a  present  or  expectant  interest  in 
said  premises  or  additions  and  unprejudiced  by  any  error  in  the 
proceedings  of  the  Court. 

And  it  is  further  ordered  and  decreed  that ,  trustee,  and 

,  substituted  trustee  as  aforesaid,  are  hereby  authorized 

and  empowered  to  execute  and  deliver  to  the  purchaser, , 

as  an  individual,  a  deed  of  conveyance  in  fee  simple,  indefeasible 
by  any  party  or  persons  having  a  present  or  expectant1  interest  in 
the  said  premises  and  unprejudiced  by  any  error  in  the  proceed- 
ings of  the  Court  upon  full  compliance  upon  the  part  of  the  pur- 
chaser with  the  terms  and  conditions  of  the  sale  as  hereinabove 
set  forth. 


FORMS  68,  69,  70  593 

The  said  ,  trustee,  and  ,  substituted  trustee  as 

aforesaid,  are  directed  to  enter  security  in  the  sum  of  $ . 

By  the  Court : 


J- 

69.  ELECTION  OF  WIDOWER  TO  TAKE  UNDER 

WILL.  245. 

In  the  Orphans'  Court  of  Philadelphia  County. 
In  re  Estate  of ,  deceased. 

Tprm    Nn    

JL  C 1  111,  j      -IN  \J»  « 

To  Whom  it  May  Concern: 

I,  ,  widower  of  the  above  decedent,  who  died  on  the 

day  of ,  having  first  made,  published  and  declared 

her  last  will  and  testament,  duly  probated  in  the  office  of  the 

Register  of  Wills  of  Philadelphia  County,  on ,  hereby  elect 

to  take  under  the  terms  of  the  said  will. 

In  Witness  Whereof  I  have  hereunto  set  my  hand  and  seal  this 

day  of ,  A.  D. — . 

(Seal) 

Philadelphia  County,  ss: 

On  this  day  of  ,  A.  D.  ,  before  me  the 

subscriber,  a  notary  public  in  and  for  the  Commonwealth  of 
Pennsylvania,  residing  in  the  City  of   Philadelphia,  personally 

appeared ,  and  acknowledged  the  foregoing  election  to  be  his 

act  and  deed  and  desired  that  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  last  above 
written. 

Notary  Public. 

70.  ELECTION    OF    WIDOW    TO    TAKE    AGAINST 

WILL.    245. 

In  the  Orphans'  Court  for  the  County  of  Philadelphia. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

NOTICE  OF  ELECTION. 

To  The Trust  Company,  Executor  of  last  will  and  testa- 
ment of  the  said  decedent. 
38 


594  FORMS  70,  71 

To  Register  ofi  Wills  and  Clerk  of  the  Orphans'  Court  of  Phila- 
delphia. 
To  Legatees,  Devisees  and  Creditors  of  the  above  Estate. 

You  will  please  take  notice  that  I, ,  widow  of  the  said 

,  deceased,  do  hereby  elect  to  take  against  the  will  of  the 

said  decedent,  and  in  lieu  thereof  to  take  and  receive  my  share 
of  said  estate  under  the  Intestate  Laws,  and  would  request  you 
to  record  and  file  this  notice  in  accordance  with  the  Act  of  As- 
sembly in  such  case  made  and  provided. 

(Seal) 

Commonwealth  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

On  this  day  of  ,  before  me  the  subscriber,  a 

Notary  Public  in  and  for  the  Commonwealth  of  Pennsylvania, 

and  residing  in  ,  personally  appeared  the  above  named 

,  widow  of  ,  deceased,  and  in  due  form  of  law 

acknowledged  the  said  notice  of  her  election  to  be  her  act  and 
deed  for  the  purposes  therein  mentioned,  and  desired  that  the 
same  might  be  recorded  as  such. 

Witness  my  hand  and  Notarial  seal  the  day  and  year  aforesaid. 

71.  PETITION  TO  THE  REGISTER  TO  REVOKE 
LETTERS  OF  ADMINISTRATION  UPON  THE 
DISCOVERY  OF  A  WILL  264. 

In  the  Register's  Court  of  Philadelphia  County. 

Estate  of ,  deceased. 

Administration  No.  . 

PETITION  TO  REVOKE  LETTERS  OF  ADMIN- 
ISTRATION. 

To  the  Honorable, ,  Register  of  Wills,  of  Phila- 
delphia County: 

The  petition  of Trust Company  respectfully  rep- 
resents : 

i.  That ,  a  citizen  of  the  United  States  of  America,  and 

resident  of  Philadelphia  County,  State  of  Pennsylvania,  departed 

this  life  at  No. Street,  in  the  County  of  Philadelphia,  and 

State  of  Pennsylvania,  on  or  about  ,  the  day  of 


2.  That  the  said was  buried  on  the  afternoon  of 


FORMS  71  595 

3.  That  on  ,  the  Register    of    Wills    of    Philadelphia 

County,  granted  letters  of  administration  on  the  estate  of 

to  ,  upon  a  petition  presented  by  her,    stating   that    said 

had  died  intestate,  and  that  she,  ,  was  his  widow 

and  sole  heir. 

4.  That  at  least  two  short  certificates  have  been  issued  by  the 
Register  to  said . 

5.  That  the  said left  a  last  will  and  testament,  which 

was  found  in  his  safe  deposit  box  at  the  Trust  

Company,  when  opened  by  your  petitioner,  at  request  of  and  in 
the  presence  of ,  to  look  for  a  will. 

6.  That  said  last  will  and  testament,  a  copy  of  which  is  hereto 
annexed,  has  been  duly  filed  with  the  Register  by  your  petitioner. 

7.  That  in  and  by  said  last  will  and  testament,  the  decedent 

nominated,  constituted  and  appointed    your    petitioner,    

Trust Company,  his  executor. 

And  your  petitioner  therefore  prays  that  citation  should  be 
issued  to  said  ,  to  show  cause  why  letters  of  administra- 
tion should  not  be  revoked. 

And  your  petitioner  will  ever  pray,  &c. 

Trust Company, 


Per- 


Trust  Officer. 

County  of  Philadelphia,  ss: 

being  duly  sworn,  deposes  and  says :  I  am  Trust  Officer 

of Trust Company,  the  above  petitioner,  and  am 

authorized  to  make  this  affidavit  on1  its  behalf,  and  that  the  facts 
set  forth  are  true  to  the  best  of  my  knowledge,  information  and 
belief. 

Sworn  and  subscribed  to  before  me  this 

day  of ,  1920. 

(Signature.) 

DECREE. 

And  Now,  to  wit,  this day  of ,  on  consideration 

of  the  within  petition  and  on  motion  of ,  attorneys  for  the 

petitioner  it  is  hereby  ordered  and  decreed  that  a  citation  issue 

directed  to  ,  individually  and  as  administratrix  of  the 

estate  of ,  deceased,  to  show  cause  why  letters  of  admin- 


596  FORMS  71,  72 

istration  heretofore  issued  to  her,  No.  ,  of  ,  on 

,  should  not  be  revoked  and  the  last  will  and  testament  of 

the  said  dated  ,  be  probated    and    letters    testa- 
mentary thereon  granted  to  the Trust > —  Company, 

the  executor  named  therein,  returnable . 


Register  of  Wills  of  Philadelphia  County. 

72.  PETITION  TO  REGISTER  FOR  CITATION  ON 
PARTY  IN  CUSTODY  OF  WILL  TO  PRESENT 
SAME  FOR  PROBATE  OR  ON  FAILURE  THERE- 
OF TO  SHOW  CAUSE  WHY  LETTERS  OF  AD- 
MINISTRATION SHOULD  NOT  BE  GRANTED. 
267. 

In  re  Estate  of ,  deceased. 

-  Term, ,  Xo. . 

PETITION  FOR  CITATION  FOR  LETTERS  TESTA- 
MENTARY OR  OF  ADMINISTRATION. 

To  the  Honorable ,  Register  of  Wills  of County : 

The  petition  of ,  respectfully  represents : 

1.    ,  the  above  decedent,  died  on  the  day    of 

,  while  temporarily  sojourning  in . 

2.  At  the  time  of  the  death  of  the  said  decedent  his  family 
residence  was  at ,  Pennsylvania. 

3.  The  said  decedent  was  survived  by  no  children  or  issue  of 
deceased  children  and  your  petitioner,  his  widow,  is  his  sole  heir. 

4.  Prior  to  the  death  of  the  said  decedent,  to  wit,  on  the 

day  of  ,  he  made,  published  and  declared  his  last  will  and 

testament,  a  copy  of  which    is    annexed    hereto,    wherein    and 

whereby  he  appointed ,  his  father,  of ,  New  York, 

Executor  of  his  estate. 

5.  The  said  decedent  at  the  time  of  his  death  was  seized  of 

certain  personal  property,  to  wit :  money  on  deposit  in  the 

Trust  Company  and  stock  in  the Building  and  Loan  Asso- 
ciation, to  collect  which  it  is  necessary  that  letters  be  granted  in 
this  jurisdiction. 

6.  That  the  said  ,  executor  nominated  under  the  will 

of  the  said  decedent  has  neglected  and  refused  and  still  neglects 
and  refuses  to  qualify  as  executor.    The  said has  in  his 


FORMS  72  597 

possession  the  will  of  said  decedent  and  has  neglected  and  refused 
and  still  neglects  and  refuses  to  produce  the  same  before  you  for 
probate. 

Wherefore  your  petitioner  prays  that  a  citation  may  issue 

directed  to  the  said  ,  to  show  cause  why  he  should  not 

appear  before  the  Register  of  Wills  of County,  Pennsyl- 
vania, with  the  will  of  said  decedent  and  qualify  as  executor  of 

the  estate  of  the  said  ,  deceased,  failing  which,  to  show 

cause  why  letters  of  administration  should  not  be  granted  to 

,  widow  of  the  said  decedent  to  administer  the  assets  of 

the  said  decedent  in  Pennsylvania. 

And  your  petitioner  will  ever  pray,  etc. 


State  of  ,  County  of 


being  duly  sworn  according  to  law,  deposes  and  says 
that  she  is  the  petitioner  herein  and  that  the  facts  set  forth  in  the 
foregoing  petition  are  true  to  the  best  of  her  knowledge,  infor- 
mation and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 

Esq.,  attorney  for  the  petitioner,  It  is  hereby  ordered  and  decreed 
that  the  prayer  thereof  be  granted  and  that  a  citation  issue  to 

,  of ,  New  York,  to  show  cause  why  he  should  not 

appear  before  the  Register  of  Wills  of County,  Pennsyl- 
vania, and  produce  the  will  of ,  deceased,  and  qualify  as 

executor  of  the  estate  of  the  said ,  deceased,  failing  which, 

to  show  cause  why  letters  of  administration  should  not  be  granted 

to  widow  of  the  said  decedent  to  administer  the  assets 

of  the  said  decedent  in  Pennsylvania. 
By  the  Court : 


J. 


598  FORMS  73 

73.  PETITION  TO  THE  ORPHANS'  COURT  SUR  AP- 
PEAL FROM  REGISTER  TO  OPEN  THE  PRO- 
BATE OF  A  WILL  AND  ALLOW  PROBATE  OF 
AN  AFTER-DISCOVERED  CODICIL.  285. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  estate  of ,  deceased. 

Term, ,  No.  . 

PETITION  SUR  APPEAL  FROM  REGISTER  TO  OPEN 

PROBATE  OF  WILL  AND  ALLOW  PROBATE 

OF  CODICIL. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  The  Company,    ,    respectfully 

represents : 

1.  That  the  decedent  died  on  the day  of ,  a  resi- 
dent of  Philadelphia  County,  having  first  made,  published  and 

declared  her  last  will  and  testament  dated  ,  and  codicil 

thereto  dated ,  which  were  duly  probated  by  the  Register 

of  Wills,  of  Philadelphia  County,  on  ,  and  letters  testa- 
mentary issued  thereunder  to  your  petitioner.    Copy  of  said  will 
and  codicil  are  hereto  annexed  as  Exhibit  "A." 

2.  Since  the  probate  of  the  said  will  and  codicil  an  additional 

codicil  has  been  found  by  your  petitioner  dated  ,  a  copy 

of  which  is  annexed  hereto  as  Exhibit  "B." 

3.  Under  the  said  will  and  first  codicil,  a  statement  of  the 
parties  in  interest  is  as  follows  (list  all  parties  in  interest)  : 

4.  All  of  said  parties  in  interest  are  living  except  as  above 

noted  and  are  of  full  age  with  the  exception  of ,  a  minor 

of  whose  estate,  by  decree  of  the  Orphans'  Court  of  Delaware 

County,  dated , ,  has  been  appointed  guardian  ad  litem  to 

appear  in  these  proceedings  and  is  a  minor  of  whose 

estate  The  Company ,  was  appointed  guardian  by 

the  Orphans'  Court  of  Philadelphia  County,  on  ,  as  of 

.  Term, ,  No. . 

5.  In  order  to  secure  the  probate  of  the  said  codicil  dated 
-,  an  appeal  has  been  taken  to  your  Honorable  Court  from 


the  decision  of  the  Register  of  Wills  in  the  above  estate,  admitting 
to  probate  the  said  will  dated ,  and  codicil  thereto  dated 


FORMS  73  599 

6.  All  parties  in  interest  as  above  set  forth  have  received  notice 
of  the  intended  presentation  of  this  petition  and  have  joined  in 
the  prayer  thereof. 

Wherefore  your  petitioner  prays  that  the  said  appeal  be  sus- 
tained and  that  a  decree  be  entered  authorizing  and  directing  the 
Register  of  Wills  of  Philadelphia  County,  to  admit  to  probate  the 

said  codicil  dated ,  the  original  of  which  is  now  lodged  of 

record  in  the  office  of  the  Register  of  Wills. 

And  your  petitioner  will  ever  pray,  etc. 

The Company, . 


By- 


State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 


JOINDER. 

We,  the  undersigned,  being  all  the  parties  interested  in  the 

estate  of  ,  deceased,  acknowledge  that  we  have  received 

notice  of  the  intended  presentation  of  the  foregoing  petition  and 
join  in  the  prayer  thereof. 

DECREE. 

And  Now,  to  wit,  this day  of ,  upon  considera- 
tion of  the  foregoing  petition  and  upon  motion  of ,  attor- 
neys for  the  petitioner,  It  is  hereby  ordered  and  decreed  that  the 
prayer  thereof  be  granted  and  the  appeal  of  The  Com- 
pany   ,  from  the  decision  of  the  Register  of  Wills  in  the 

estate  of  ,  admitting  to  probate  a  certain  paper  writing, 

being  the  last  will  and  testament  of  the  said  decedent  dated , 

and  codicil  thereto  dated  ,  is  hereby  sustained  and  the 

Register  of  Wills  of  Philadelphia  County  is  hereby  authorized, 


6oo  FORMS  73,  74 

empowered  and  instructed  to  admit  to  probate  a  second  codicil 
to  the  said  will  dated ,  upon  legal  proof  of  the  proper  ex- 
ecution of  the  same. 

By  the  Court : 


J. 

74.  PETITION  FOR  THE  APPOINTMENT  OF  AN  AD- 
MINISTRATOR D.  B.  N.  C.  T.  A.  WHERE  THE 
DECEDENT  HAS  BEEN  DEAD  MORE  THAN 
TWENTY-ONE  YEARS.  356. 

In  the  Orphans'  Court  for  the  County  of  Philadelphia. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of respectfully  represents : 

1.  The  ,  late  of  the  County    of    Philadelphia,    died 

,  1866,  having  first  made  and  published  his  last  will  and 

testament,  wherein  and  whereby  he  appointed ,  Executors, 

to  whom  letters  testamentary  were  duly  granted  by  the  Register 
of  Wills.    A  copy  of  said  will  is  hereto  annexed. 

2.  That  the  said  executors  duly  administered  the  said  estate 
which  came  into  their  hands  and  have  since  died. 

3.  The  residuary  estate  of  decedent  is  held  under  this  trust 
(give  terms  of  will  and  outline  parties  in  interest)  : 

All  of  such  parties  thus  entitled  have  received  notice  of  the 
presentation  of  this  petition  and  have  joined  in  the  prayer 
thereof. 

5.  Certain  assets  belonging  to  said  estate  not  administered  by 
the  executors  hereinabove  referred  to  have  now  come  to  the 
attention  of  your  petitioner,  wherefore  it  is  necessary  that  an 
administrator  be  appointed  to  administer  same. 

Wherefore  your  petitioner,  showing  to  your  Honorable  Court 

that  the  said having  died  more  than  twenty-one  years  ago 

and  that  letters  of  administration  de  bonis  non  cum  testamento 
annexe  can  only  be  granted  upon  his  estate  by  the  Register  of 
Wills  of  Philadelphia  County,  when  so  authorized  and  directed 
by  your  Honorable  Court,  pray  your  Honorable  Court  to  authorize 
the  said  Register  of  Wills  of  Philadelphia  County,  to  grant  letters 


FORMS  74,  75  601 

of  administration  de  bonis  non  cum  testamento  annexe  to  such 
person  or  persons  as  are  now  entitled  to  the  same  in  accordance 
with  the  Act  of  Assembly  in  such  case  made  and  provided. 
And  your  petitioner  will  ever  pray,  etc. 


County  of  Philadelphia,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  she  is  the  petitioner  above  named  and  that  the  facts  set  forth 
in  the  foregoing  petition  are  true  and  correct  to  the  best  of  her 
knowledge,  information  and  belief. 

Subscribed  and  sworn  to  before  me  this 
day  of  ,  1918. 

Notary  Public. 

JOINDER. 
We,  the  undersigned,  being  all  the  parties  interested  in  the 

estate  of  ,  deceased,  hereby  acknowledge  that  we  have 

received  notice  of  the  intended  presentation  of  the  foregoing 
petition  and  join  in  the  prayer  thereof. 

(Signatures.) 

DECREE. 

And  Now,  to  wit,  this day  of ,  upon  considera- 
tion of  the  foregoing  petition  and  on  motion  of ,  attorneys 

for  petitioner,  it  is  ordered,  adjudged  and  decreed  that  the  prayer 
of  the  said  petition  be  granted,  and  the  Register  of  Wills  of 
Philadelphia  County,  be  and  he  is  hereby  authorized  to  grant 
letters  of  administration  de  bonis  non  cum  testamento  annexe 

on  said  estate  of ,  deceased,  to  such  person  or  persons  as 

may  be  entitled  thereto  under  the  Act  of  Assembly  of  the  Com- 
monwealth of  Pennsylvania,  in  such  case  made  and  provided. 


J- 

75.     PETITION  BY  GUARDIAN  FOR  REDUCTION  OF 
SECURITY  ON  HIS  BOND.    389. 
In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  minors. 

Term, ,  No. . 


6b2  FORMS  75 

t 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  -,  guardian  of  the  estates    of    , 

minors,  respectfully  represents: 

1.  That  your  petitioner  was  duly  appointed  guardian  of  the 
estates  of  the  above  minors  by  decree  of  your  Honorable  Court, 

dated ,  wherein  security  was  directed  to  be  entered  in  the 

sum  of  $ . 

2.  That  the  amount  of  this  security  was  fixed  upon  the  incor- 
rect presumption  that  each  of  said  minors  would  be  entitled  to 

approximately  $ as  their  proportionate  share  of  the  estate 

of ,  deceased. 

3.  Schedules  of  distribution  have  now  been  filed  in  connection 

with  the  three  adjudications  of  the  Honorable  ,  sur  the 

trust  accounts  filed  in  the  estate    of    deceased,    as    of 

,  and  it  now  appears  that  each  minor  is  entitled  to  the  sum 

of  $ ,  or  a  total  of  $ . 

4.  Wherefore  your  petitioner  prays  that  the  security  directed 
to  be  entered  by  him  be  reduced  from  $ to  $ . 

And  he  will  ever  pray,  etc. 


Guardian  of  the  Estates  of ,  Minors. 

State  of  Pennsylvania, 

County  of ,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  the  facts  set  forth  in  the  foregoing  petition  are  true  to  the 
best  of  his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 


JOINDER. 

I,  the  undersigned, ,  mother  and  next  of  kin  of  the  said 

minors,  hereby  acknowledge  that  I  have  received  notice  of  the 
intended  presentation  of  the  foregoing  petition  and  join  in  the 
prayer  thereof. 


FORMS  75,  76  603 

DECREE. 

And  Now,  to  wit,  this day  of ,  upon  considera- 
tion of  the  foregoing  petition,  It  is  hereby  ordered  and  decreed 

that  the  security  heretofore  required  to  be  entered  by  , 

guardian  of  the  estates  of ,  minors,  in  the  aggregate  sum 

of  $ ,  is  hereby  reduced  to  the  sum  of  $ ,  and  that 

one  bond  be  filed  by  the  said  guardian  and  the  Surety 

Company,  of  ,  is  hereby  approved  as  surety  on  the  said 

bond. 

By  the  Court : 


76.    PETITION  FOR  WIDOW'S  EXEMPTION  IN  CASH. 
403- 

In  the  Orphans'  Court  for  the  County  of  Philadelphia. 

In  re  Estate  of  ,  deceased. 

Term, ,  No. . 

PETITION  FOR  WIDOW'S  EXEMPTION. 
To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of ,  respectfully  represents : 

1.  That departed  this  life  on  the day  of , 

leaving  to  survive  him  ,  his  widow,  your  petitioner,  and 

one  child,  ,  who  is  of  full  age,  the  said  decedent  having 

first  made  and  published  his  last  will  and  testament  dated , 

copy  of  which  is  attached  hereto,  duly  probated  in  the  office  of 
the  Register  of  Wills  for  the  County  of  Philadelphia,  and  letters 
testamentary  upon  his  estate  were  granted  to  The Com- 
pany   ,  the  alternative  executor  named  in  said  will, , 

and ,  the  other  executors,  having  predeceased  the  testator. 

2.  That  your  petitioner  has  elected  to  retain  as  widow  of  the 

said ,  deceased,  from  and  out  of  the  personal  property  of 

the  said  decedent  the  sum  of  $500  in  cash,  and  prays  that  the 
said  sum  may  be  set  apart  and  awarded  to  her  under  Sec.  12  of 
the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447. 

And  your  petitioner  will  ever  pray,  etc. 

Petitioner. 


604  FORMS  76,  77 

County  of  Philadelphia,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  she  is  the  petitioner  above  named  and  that  the  facts  set 
forth  in  the  foregoing  petition  are  true  and  correct  to  the  best 
of  her  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  A.  D.  1919. 


Notary  Public. 
Commission  expires . 

In  the  Orphans'  Court  for  the  County  of  Philadelphia. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

DECREE. 

And  Now,  to  wit,  this day  of ,  on  presentation 

of  proof  of  publication,  and  no  exceptions  thereto  having  been 
filed,  It  is  ordered  and  decreed  that  the  sum  of  $500  be  set 

apart  for  and  retained  by ,  widow  of  the  said  decedent, 

out  of  the  cash  belonging  to  the  decedent  at  the  time  of  his 
death. 

By  the  Court : 


J- 

77.  PETITION  BY  TRUSTEE  FOR  LEAVE  TO  EXE- 
CUTE A  LEASE  OF  REAL  ESTATE  FOR  TEN 
YEARS.  497. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No.  . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  the Trust  Company, ,  under  the 

will  of ,  deceased,  respectfully  represents : 

i.  That ,  late  of  the  City  and  County  of  Philadelphia, 

died  ,  having  first  made  and  published  his  last  will  and 

testament,  duly  probated  in  the  office  of  the  Register  of  Wills 

in  and  for  the  County  of  Philadelphia. 


FORMS  77  605 

2.  In  and  by  said  will  testator  gave  his  residuary  estate  to 
your  petitioner,  in  trust  (recite  terms  of  trust)  : 

3.  (Here  show  the  parties  in  interest.) 

4.  That  among  the  assets  of  the  residuary  estate  of  the  said 
decedent  is  the  following  described  real  estate,  to  wit:  (descrip- 
tion) : 

5.  With  the  consent  of  the  parties  in  interest  and  subject  to 
the  approval  of  your  Honorable  Court,  your  petitioner  has  agreed 
to  execute  a  lease  of  the  premises  hereinabove  described  as  of 

the day  of ,  with ,  for  the  term  of  ten  years, 

to  commence  and  be  computed  from  the day  of ,  at 

the  annual  rent  of  $ ,  payable  monthly  in  advance  in  equal 

payments  of  $ ,  on  the  first  day  of  each  and  every  month. 

Copy  of  the  lease  suggested  is  hereto  annexed  marked  Exhibit 
"B." 

6.  The  assessed  value  of  the  said  premises  is  $ ,  and  the 

estimated  annual  return  on  the  assessed  valuation  of  the  prop- 
erty based  on  the  said  lease  after  deduction  of  fixed  charges, 

amounts  to  $ per  year,  or  a  return  of  per  cent. 

on  the  said  value. 

7.  Your  petitioner  and  all  parties  in  interest  who  are  sui  juris 
believe  that  the  execution  of  the  said  lease  will  be  to  the  best 
interest  and  advantage  of  the  estate  and  all  parties  interested 
therein  either  presently  or  in  remainder. 

8.  That  all  of  the  parties  in  interest  as  hereinabove  set  forth 
have  joined  in  the  prayer  of  this  petition  either  individually  or 
by  their  attorney  duly  appointed  and  constituted  for  the  purpose 
by  letter  of  attorney  duly  recorded. 

9.  Under  section  31  of  the  Fiduciaries  Act  of  1917,  it  is  neces- 
sary that  your  petitioner  apply  to  your  Honorable  Court  for 
leave  and  authority  to  execute  the  said  lease  so  that  the  same 
shall  have  the  same  force  and  effect  as  though  the  said  lease  were 
made  by  the  beneficial  owner  or  owners  of  the  said  property  and 
he  or  they  were  sui  juris  and  owned  the  property  in  fee. 

Wherefore  your  petitioner  prays  for  leave  and  authority  to 
execute  a  lease  of  premises  (describing  them)  : 
to  for  the  term  of  ten  years  to  commence  and  be  com- 
puted from  the day  of ,  for  the  annual  rent  or  sum 

of  $ ,  payable  monthly  in  advance,  in  equal  payments  of 

on  the  first  day  of  each  and  every  month,  said  lease  to 


606  FORMS  77 

be  substantially  the  same  in  form  as  set  forth  in  Exhibit  "B" 
attached  hereto. 

And  your  petitioner  will  ever  pray,  etc. 

1  Trust  Company,  Trustee  under 

the  Will  of ,  deceased. 

By 

State  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner,  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 
knowledge,  information  and  belief. 


Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 

We,  the  undersigned,  being  all  the  parties  presently  interested 

in  the  estate  of  ,  deceased,  hereby  acknowledge  that  we 

have  received  notice  of  the  presentation  of  the  foregoing  peti- 
tion and  join  in  the  prayer  thereof. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  arid  on  motion  of ,  attor- 
neys for  the  petitioner,  it  appearing  from  the  facts  set  forth  in 
the  said  petition  that  it  would  be  just  and  equitable  to  execute  the 
lease  therein  set  forth,  the  Court  grants  the  prayer  of  said  peti- 
tion and  authorizes  and  empowers  the  Trust  Company, 

Trustee  under  the  will  of ,  deceased,  to  execute  a  lease  of 

premises  (describe  them)  : 

to ,  for  the  term  of  ten  years  to  commence  and  be  com- 
puted from  the  day  of  ,  for  the  annual  rent  or 

sum  of  $ ,  payable  monthly  in  advance  in  equal  payments 


FORMS  77,  78  607 

of  $ ,  on  the  first  day  of  each  and  every  month,  said  lease 

to  be  substantially  the  same  in  form  as  set  forth  in  Exhibit  "B" 
attached  hereto,  with  the  same  force  and  effect  as  though  the 
said  lease  were  made  by  the  beneficial  owner  or  owners  and  he 
or  they  were  sui  juris  and  owned  the  property  in  fee;  security 

to  be  entered  in  the  sum  of  $ ,  and  the  bond  of  the  said 

Trust  Company  is  hereby  approved  as  such  security. 

By  the  Court  : 


J- 

78.  PETITION  BY  TRUSTEE  FOR  LEAVE  TO  JOIN 
IN  THE  EXECUTION  OF  LEASE  OF  COAL  AND 
MINERAL  RIGHTS  FOR  A  PERIOD  EXCEED- 
ING FIVE  YEARS  497,  624. 

In  the  Orphans'  Court  of  Schuylkill  County. 

In  the  matteij  of  the  Estate  of ,  deceased. 

Term,  ,  No. . 

To  the  Honorable,  the  Judges  of  the  Send  Court: 

The  petition  of  The  Company,  ,  and  , 

surviving  trustees  under  the  will  of  ,  deceased,  respect- 
fully represents: 

1.  That ,  late  of  the  City  of  Philadelphia,  Pennsylvania, 

died  on  the day  of  ,  having  first  made,  published 

and  declared  his  last  will  and  testament  dated ,  duly  pro- 
bated in  the  office  of  the    Register    of    Wills    of    Philadelphia 
County,  a  copy  of  said  will  being  hereto  annexed  as  Exhibit  "A." 

2.  Decedent,  by  his  will  (recite  terms  of  trust)  : 

3.  (Recite  parties  in  interest.) 

4.  Among  the  assets  of  the  residuary  estate  of  the  said  dece- 
dent is  an  undivided  interest  in  a  certain  tract  of  coal 

land  known  as  the ,  situated  in Township, 

County,  Pennsylvania,  and  an  entire  interest  in  another  tract  of 

coal  land  known  as  the ,  also  situated  in  said  township  and 

State. 

5.  Subject  to  the  approval  of  your  Honorable  Court  your 
petitioners  have  agreed  to  lease  the  interest  of  the  said  estate 
in  the  said  coal  tracts  to  the Coal  Company,  a  Pennsyl- 
vania corporation,  for  a  period  exceeding  five  years  upon  the 


6o8  FORMS  78 

terms  and  conditions  set  forth  at  length  in  copies  of  the  said 
leases  hereto  annexed  as  Exhibits  "B"  and  "C"  respectively. 

6.  Your  petitioners  have  been  advised  and  believe  that  it  will 
be  to  the  best  interest  and  advantage  of  the  estate  of  the  said 
decedent  and  those  financially  interested  therein  that  they  join 

with  the  other  parties  in  interest  in  the  leasing  of  the 

Tract  and  execute  and  deliver  a  lease  to  the Tract,  said 

leases  to  be  substantially  similar  in  form  to  those  hereinabove 
referred  to,  copies  of  which  are  annexed  hereto  and  have  agreed 
so  to  do,  subject  to  the  approval  of  your  Honorable  Court,  but 
under  the  terms  of  Sec.  31  of  the  Fiduciaries  Act  of  1917,  they 
have  no  authority  to  do  so  without  the  consent  of  your  Honor- 
able Court  first  had  and  obtained. 

7.  All  parties  in  interest  under  and  by  virtue  of  the  terms  of 
the  will  of  the  said  decedent  have  received  notice  of  the  intended 
presentation  of  this  petition  and  have  joined  in  the  prayer  thereof. 

8.  Wherefore  your  petitioners  pray  your  Honorable  Court 
for  leave  and  authority  to  join  with  the  other  parties  in  interest 
in  the  execution  of  a  lease  substantially  similar  in  form  to  that 

annexed  hereto  as  Exhibit  "B",  to  the  Coal  Company, 

covering  the Tract  in Township,  County, 

Pennsylvania,  and  to  execute  and  deliver  a  lease  substantially 
similar  in  form  to  that  annexed  hereto  as  Exhibit  "C"  to  the 

Coal  Company,  covering  the  Tract   in    

Township,  County,  Pennsylvania. 

And  your  petitioners  will  ever  pray,  etc. 

The  Company,  . 

By 


Surviving  Trustees  under  the  Will  of ,  deceased. 

State  of  ,  County  of  ,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner,  and  that  the  facts 

set  forth  therein  are  true  to  the  best  of  his  knowledge,  informa- 
tion and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 


FORMS  78,  79  609 

JOINDER. 

We,  the  undersigned,  being  all  the  parties  in  interest  in  the 

estate  of  ,  deceased,  hereby  acknowledge  that  we  have 

received  notice  of  the  intended  presentation  of  the  foregoing 
petition  and  join  in  the  prayer  thereof. 

(Signatures.) 
DECREE. 

And  Now,  to  wit,  this  day  of  ,  192 ,  upon 

consideration  of  the  foregoing  petition,  it  appearing  that  it  will 

be  to  the  interest  and  advantage  of  the  estate  of  ,  that 

the  leases  hereinafter  referred  to  should  be  executed  and  it 
appearing  that  the  said  leases  may  be  made  without  injury  or 
prejudice  to  any  trust,  charity  or  purpose  for  which  the  premises 
therein  let  are  held  and  without  the  violation  of  any  law  which 
may  confer  an  immunity  or  exemption  from  sale  or  alienation, 

It  is  hereby  ordered  and  decreed  that   The   Company, 

and ,  surviving  trustees  under  the  will  of , 

deceased,  be  and  the  same  are  hereby  authorized  and  empowered 
to  join  with  the  other  parties  in  interest  in  the  execution  and 
delivery  of  a  lease  substantially  similar  in  form  to  that  annexed 

hereto  to  the Coal  Company  covering  the Tract  in 

Township, County,  Pennsylvania,  and  It  is  hereby 

ordered  and  decreed  that  The    Company    and 

be  and  the  same  are  hereby  authorized  and  empowered 

to  execute  and  deliver  a  lease  substantially  similar  in  form  to 

that  annexed  hereto  to  the  Coal  Company  covering  the 

Tract  in Township, County,  Pennsylvania ; 

security  to  be  entered  in  the  sum  of  $ ,  and  the  bond  of 

the  said  The  Company  ,  is  hereby  approved  as 

such  security. 

By  the/  Court : 


J. 

79.     PETITION  BY  TRUSTEE  FOR  LEAVE  TO  PUR- 
CHASE   REAL    ESTATE    WITH    UNINVESTED 
PRINCIPAL.     529. 
In  the  Orphans'  Court  for  the  County  of  Philadelphia. 

In  re  Estate  of ,  deceased. 

Term,     -        ,  No,  — = . 

39 


610  FORMS  79 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  The Company  ,  Trustee  under 

the  will  of ,  deceased,  respectfully  represents: 

i-   died  on  the day  of  ,  by  his  will,  (a 

copy  of  which  is  attached  hereto  as  Exhibit  "A")  on  the  death 

of  his  wife  ,  and  the  attaining  of  his  youngest  child  of 

the  age  of  twenty-one,  he  directed  (recite  terms  of  trust) : 

2.  (Recite  parties  in  interest.) 

3.  By  adjudication  of  your  Honorable  Court  dated  , 

one-seventh  of  the  fund  was  set  aside  to  your  petitioner  in  trust 
under  the  terms  of  said  will  for ,  daughter  of  the  dece- 
dent, which  fund  now  amounts  to  approximately  $ . 

4.  The  said  life  tenant,  ,  is  the  lessee  of  premises  No. 

Road,  which  has  been  occupied  by  her  as  her  home  for 

a  number  of  years.    She  has  recently  been  advised  by  the  owners 
of  said  property  that  it  is  their  intention  to  sell  the  same  and 
because  of  the  above  facts,  has  requested  your  petitioner  to  pur- 
chase the  said  premises,  more  particularly  hereinafter  described, 
out  of  the  moneys  held  in  its  hands  as  aforesaid  for  her  benefit 
for  life. 

5.  Your  petitioner  has,  therefore,  acting  under  and  by  authority 
of  Section  41  (a)  2  of  the  Fiduciaries  Act  of  1917,  and  subject 
to  the  approval  of  your  Honorable  Court,  entered  into  an  agree- 
ment to  purchase  from ,  the  owners  thereof :  (description)  : 

for  the  price  or  sum  of  $ in  cash. 

Title  to  the  above  premises  to  be  good  and  marketable,  free 
and  clear  of  all  encumbrances,  liens,  etc.,  and  such  as  will  be 
insured  by  the  Trust  Company  of  the  City  of  Philadel- 
phia, at  their  usual  rates,  subject,  nevertheless,  to  the  following 
conditions  and  restrictions  (recite  conditions  and  restrictions)  : 

6.  Your  petitioner  is  informed  and  believes  that  the  purchase 
of  the  said  property,  in  view  of  the  circumstances  hereinbefore 
referred  to,  will  be  to  the  best  interest  and  advantage  of  the 

estate  of  the  said  for  whom  your  petitioner  is  Trustee 

and  no  change  will  be  made  in  the  course  of  succession  by  said 
investment  as  regards  the  heirs  and  next  of  kin  of  the  cestui  que 
trust  and  furthermore,  such  investment  will  not  be  contrary  to 
the  provisions  contained  in  the  said  will. 

7.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts  of  the  City  of  Philadelphia,  familiar  with  values  of 


FORMS  79  6il 

real  estate  in  the  vicinity  of  the  premises  hereinabove  referred  to, 

that  the  said  price  of  $ for  the  premises  herein  described, 

is  a  fair  one  and  that  the  same  is  a  just  and  true  valuation 
thereof  and  represents  its  present  market  value.  Their  affidavits 
to  this  effect  are  hereto  annexed  marked  respectively  Exhibit 
"B"  and  Exhibit  "C." 

8.  The  said  premises  are  assessed  for  taxation  by  the  City  of 

Philadelphia  in  the  sum  of  $ ,  as  will  appear  from  the 

certificate  by  the  Board  of  Revision  of  Taxes  hereto  annexed 
marked  Exhibit  "D." 

9.  That  the  only  parties  interested  as  life  tenants  and  in  re- 
mainder in  the  said  trust  are  ,  who  is  living  and  of  full 

age  and  his  one  child  to  wit:  ,  who  is  living  and  of  full 

age  and  has  no  children.     Both  of   said  parties  are  earnestly 
desirous  that  the  said  sale  shall  be  consummated.     They  have 
received  notice  of  the  intended  presentation  of  this  petition  and 
have  joined  in  the  prayer  thereof. 

Your  petitioner,  therefore,  prays  your  Honorable  Court  for 

leave  and  authority  as  trustee  under  the  will  of  ,  deceased, 

to  purchase  and  acquire  title  in  fee  simple  to  the  premises  here- 
inabove described,  known  as  from  ,  under  and 

subject  to  the  restrictions  hereinabove  set  forth  and  upon  the 
execution  of  a  good  and  sufficient  deed  for  the  said  premises  to 
pay  the  said the  said  price  or  sum  of  $ . 

And  it  will  ever  pray,  &c. 

The Company ,  Trustee 

under  the  will  of ,  deceased. 

By 


Commonwealth  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

Personally  appeared  ,  Trust  Officer  of  said  petitioner, 

who  being  duly  sworn,  deposes  and  says  that  the  statements 
contained  in  the  foregoing  petition  are  true,  to  the  best  of  his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1919. 


6l2  FORMS  79 

JOINDER. 

We,  the  undersigned,  being  the  only  parties  interested  as  life 

tenants  and  remainderman  under  the  will  of  ,  deceased, 

in  the  trust  referred  to  in  the  foregoing  petition,  hereby  acknowl- 
edge that  we  have  received  notice  of  the  intended  presentation  of 
the  said  petition  and  join  in  the  prayer  thereof. 

(Signatures.) 

EXHIBIT  "B." 
Philadelphia  County,  ss: 

On  this  day  of  ,  191 ,  personally  appeared 

before  me, ,  who  being  duly ,  says  that  he  is  a  real 

estate  broker,  residing  in  the  City  of  Philadelphia;  that  he  has 

for  years  been  largely  interested  and    engaged    in    the 

business  of  dealing  in  real  estate  in  the  City  and  County  of 
Philadelphia,  in  the  neighborhood  in  which  the  premises  described 
in  the  foregoing  petition  are  located ;  that  he  is  familiar  with  the 
values  of  real  estate  in  said  locality ;  that  he  knows  said  premises 
well  and  that  in  his  opinion  the  price  or  sum  of  $ ,  indi- 
cated in  said  petition  as  being  the  present  value  of  said  premises 
is  a  just  and  true  valuation  thereof,  and  that  the  same  in  his 
opinion  represents  their  present  market  value. 

to  and  subscribed  before  me  this 

day  of ,  1919. 

Notary  Public. 
My  commission  expires  on  the day  of ,  1919. 

DECREE. 

And  Now,  to  wit,  this day  of ,  1919,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 

attorneys  for  the  petitioner,  It  is  hereby  ordered  and  decreed  that 

the  prayer  thereof  be  granted  and  that  The  Company 

,  Trustee  under  the  will  of  ,  deceased,  for , 

is  hereby  authorized  and  empowered  to  purchase  and  acquire 

from a  fee  simple  title  in  (description)  : 

subject,  nevertheless,  to  the  following  conditions  and  restrictions: 

(recite  conditions  and  restrictions)  : 

and  upon  the  execution  and  deliver)'  of  a  good  and  sufficient  deed 


FORMS  79,  80  613 

for  the  said  premises  to  pay  to  the  said  therefor,  the 

price  or  sum  of  $ . 

By  the  Court : 


J- 

80.  PETITION  BY  TRUSTEE  FOR  LEAVE  TO  PUR- 
CHASE REAL  ESTATE  REQUIRING  AN  IN- 
VESTMENT OF  AN  AMOUNT  LARGER  THAN 
THAT  AUTHORIZED  BY  THE  WILL.  529. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

-  Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  ,  surviving  trustee  under  the  will  of 

,  deceased,  respectfully  represents: 

1.  That died ,  having  first  made,  published  and 

declared  her  last  will  and  testament  dated (copy  of  which 

is  annexed  hereto  as  Exhibit  "A"),  duly  probated  in  the  office 

of  the  Register  of  Wills  of   Philadelphia  County,   on  , 

whereunder  and  whereby  she  provided  inter    alia    as    follows: 
(recite  terms  of  trust)  : 

2.  Under  said  will  your  petitioner  and were  appointed 

trustees.    The  said died  on  the . 

3.  The  said  life  tenant  is  living  and  intermarried  with  one 
-,  and  they  have  but  one  child,  to  wit, ,  a  minor  for 


whom  The Company ,  is  guardian. 

4.  The  said has  requested  your  petitioner  to  purchase 

for  her  use  as  a  residence  and  home,  a  certain  three-story  stone 

dwelling  and  two-story  two-car  garage  at  the  corner  of 

Avenue  and  Avenue,  Township,  

County,  Pennsylvania,  known  and  described  as  follows:  (descrip- 
tion) : 

5.  The  said  premises  can  be  purchased  for  the  sum  of  $ , 

payable  $ in  cash  and  $ by  the  assumption  of  one 

or  more  mortgages  in  the  usual  form,  bearing  interest  at  the 
rate  of  6  per  cent,  per  annum  and  due  at  the  expiration  of  three 
years. 

6.  Your  petitioner  has  been  assured  by  two  disinterested  real 
estate  experts  familiar  with  the  value  of  property  in  the  vicinity 


614  FORMS  80 

of  the  premises  in  question  that  the  said  price  is  a  reasonable 
one  and  less  than  would  have  to  be  paid  at  public  sale. 

7.  Your  petitioner  is  informed  and  believes  that  the  purchase 
of  the  said  property,  in  view  of  the  circumstances  hereinbefore 
referred  to,  will  be  to  the  best  interest  and  advantage  of  the 

estate  of  the  said  for  whom  your  petitioner  is  trustee, 

and  no  change  will  be  made  in  the  course  of  succession  by  said 
investment  as  regards  the  heirs  and  next  of  kin  of  the  cestui  que 
trust  and  furthermore,  such  investment  will  not  be  contrary  to 
the  provisions  contained  in  the  said  will. 

8.  The  only  parties  interested  in  the  said  trust  as  hereinabove 

set  forth,  to  wit,  and  The    Company    , 

Guardian  of ,  have  received  notice  of  the  intended  presen- 
tation of  this  petition  and  have  joined  in  the  prayer  thereof. 

9.  While  your  petitioner  has  the  power  under  the  said  will, 

if  the  said should  desire,  that  a  house  should  be  purchased 

for  herself  "to  use  the  funds  of  her  share  of  the  trust  estate  to 

an  amount  not  exceeding  $ for  such  purchase,"  and  though 

your  petitioner  deems  it  to  be  advisable  to  make  such  purchase, 
yet  under  the  terms  of  the  will  he  has  not  the  power  to  make 
such  purchase  incumbered  by  a  mortgage  and  therefore,  having 
in  hand  certain  moneys,  the  principal  or  capital  whereof  is  to 
remain  in  his  possession  and  under  his  control,  acting  under  and 
by  authority  of  Section  41  (a)  2  of  the  Fiduciaries  Act  of  1917, 
prays  your  Honorable  Court  for  leave  and  authority  as  surviving 

trustee  under  the  will  of  (his  co-trustee  having  died  as 

above  set  forth),  to  purchase  and  acquire  title  in  fee  simple  to 
the  premises  hereinabove  described  under  and  subject    to    the 
restrictions  hereinabove  set  forth  and  under  and  subject  to  a 

mortgage  or  mortgages  aggregating  $ in  the  usual  form 

with  interest  at  6  per  cent,  due  at  the  expiration  of  three  years 
and  upon  the  execution  of  a  good  and  sufficient  deed  for  the 

said  premises,  to  pay  therefor  the  said  price  or  sum  of  $ 

in  cash  and  thereafter  to  hold  title  to  the  same  under  the  uses 
and  trusts  and  with  the  powers  conferred  in  and  by  virtue  of  the 
terms  of  the  said  will. 

And  your  petitioner  will  ever  pray,  &c. 


Surviving  Trustee  under  the  Will 
of ,  deceased. 


FORMS  80  615 

State  of ,  County  of ,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the  surviving  trustee  under  the  will  of ,  deceased, 

and  that  the  facts  set  forth  in  the  foregoing  petition  are  true  to 
the  best  of  his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 


JOINDER. 

We,  the  undersigned,  being  the  only  parties  interested  as  life 

tenants  and  remaindermen  under  the  will  of ,  deceased,  in 

the  trust  referred  to  in  the  foregoing  petition,  hereby  acknowl- 
edge that  we  have  received  notice  of  the  intended  presentation 
of  the  said  petition  and  join  in  the  prayer  thereof. 

EXHIBIT  "B." 

County,  ss: 

On  this day  of 1920,  personally  appeared  before 

me ,  who  being  duly ,  says  that  he  is  a  real  estate 

broker ;  that  he  has  for years  been  largely  interested  and 

engaged  in  the  business  of  dealing  in  real  estate  in  the  neighbor- 
hood in  which  the  premises  described  in  the  foregoing  petition 
are  located ;  that  he  is  familiar  with  the  values  of  real  estate  in 
said  locality;  that  he  knows  said  premises  well  and  that  in  his 

opinion  the  price  or  sum  of  $ ,  indicated  in  said  petition 

as  being  the  present  value  of  said  premises  is  a  just  and  true 
valuation  thereof,  and  that  the  same  in  his  opinion  represents 
their  market  value  and  a  less  sum  than  would  have  to  be  paid  for 
said  premises,  provided  the  same  could  be  sold  at  public  sale. 

to  and  subscribed  before  me  this 


day  of ,  1920. 


DECREE. 

And  Now,  to  wit,  this day  of ,  upon  considera- 
tion of  the  foregoing  petition  and  on  motion  of ,  attorneys 

for  the  petitioner,  //  is  hereby  ordered  and  decreed  that  the  prayer 

thereof  be  granted  and  that ,  surviving  trustee  under  the 

will  of ,  deceased,  is  hereby  authorized  and)  empowered  to 

purchase  and  acquire  a  fee  simple  title  in:  (description) : 


-6 1 6  FORMS  80,  81 

and  to  hold  title  to  the  same  upon  the  uses  and  trusts  and  with 

the  powers  conferred  upon  him  under  the  will  of  the  said , 

and  upon  the  execution  and  delivery  of  a  good  and  sufficient  deed 

for  the  said  premises,  to  pay  therefor  the  price  or  sum  of  $ 

and  take  title  thereto  under  and  subject  to  one  or  more  mortgages 

aggregating  $ ,  due  at  the  expiration  of  three  years  with 

interest  at  6  per  cent. 

By  the  Court : 


J- 

81.    PETITION   BY  CREDITOR  FOR   CITATION   ON 
EXECUTOR  TO  FILE  AN  ACCOUNT.    539. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No.  -. 

To  the  Honorable,  the  Judges  of  the  said  Court: 
The  petition  of respectfully  represents: 

1.  That  died  on  ,  a  resident  of  Philadelphia 

County,  having  first  made,  published  and  declared  her  last  will 

and  testament  dated  the day  of ,  duly  probated  in 

the  office  of  the  Register  of  Wills  of  Philadelphia  County,  on 

,  being  Will  No.  ,  duly  recorded    in    Will    Book 

,  page ,  wherein  and  whereby  the  said  decedent  did 

appoint  her  son, ,  of Street,  Philadelphia,  Executor 

to  whom  letters  testamentary  were  duly  granted  by  the  said 
Register  on  the  date  aforesaid. 

2.  As  set  forth  in  the  petition  for  letters  testamentary  the  dece- 
dent died  seized  of  personal  property  of  the  value  of  $ ,  and 

real  estate,  to  wit:  Street,  Philadelphia,  of  a  value  of 

3.  No  inventory  has  been  filed  by  the  said  Executor,  nor  has 
he  filed  any  accounting  of  his  executorship  in  the  office  of  the 
Register  of  Wills  as  required  by  law,  though  repeatedly  requested 
so  to  dd  by  your  petitioner. 

4.  Your  petitioner  is  an  undertaker  engaged  in  business  at 
Street,  Philadelphia. 

5.  Your  petitioner,  at  the  request  of  the  said  Executor,  attended 
to  the  burial  of  the  said  decedent  and  there  is  justly  due  and 


FORMS  81  617 

owing  to  your  petitioner  a  balance  of  $ on  account  of  the 

cost  of  said  burial. 

6.  The  said  Executor,  ,  though  repeatedly  requested 

so  to  do  by  your  petitioner  has  neglected  and  refused  and  still 

neglects  and  refuses  to  pay  the  said  balance  of  $ due  your 

petitioner  as  aforesaid. 

Wherefore  your  petitioner  prays  your  Honorable  Court  for 

a  citation  directed  to  the  said ,  Executor  of  the  estate  of 

• ,  deceased,  to  show  cause  why  he  should  not  forthwith 

file  an  account  as  such  Executor  in  the  office  of  the  Register  of 
Wills  of  Philadelphia  County,  as  required  by  law. 

And  your  petitioner  will  ever  pray,  etc. 


State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the  petitioner  herein  and  that  the  facts  set  forth  in  the 
foregoing  petition  are  true  and  correct  to  the  best  of  his  knowl- 
edge, information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of  ,  deceased. 

Term, ,  No. . 

DECREE. 

And  Now,  to  wit,  this day  of ,1921,  upon  con- 
sideration of  the  annexed  petition  and  on  motion  of ,  attor- 
neys/ for  the  petitioner,  It  is  hereby  ordered  and  decreed  that  the 
prayer  thereof  be  granted  and  a  citation  is  directed  to  be  issued 

to ,  Executor  of  the  estate  of  ,  deceased,  to  show 

cause  why  he  should  not  forthwith  file  an  account  as  such  Ex- 
ecutor in  the  office  of  the  Register  of  Wills    of    Philadelphia 
County,  as  required  by  law.    Returnable  sec.  leg. 
By  the  Court : 


J- 


618  FORMS  82  . 

82.  PETITION  BY  AN  ACCOUNTANT  FOR  THE  AP- 
POINTMENT OF  AN  AUDITOR  IN  COUNTIES 
HAVING  NO  SEPARATE  ORPHANS'  COURT. 
550. 

In  the  Orphans'  Court  of  Delaware  County. 
In  re  Estate  of ,  deceased. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  Company  ,  Trustee  under  the 

will  of ,  deceased,  respectfully  represents: 

1.  That  it  is  trustee  under  the  will  of ,  deceased. 

2.  That  as  such  trustee  it  filed  its  account  in  your  Honorable 
Court  on  or  about  the day  of . 

3.  On ,  said  account  was  confirmed  nisi  and  on 

the  said  account  was  confirmed  absolutely. 

4.  Said  account  shows  a  balance  of  principal  on  hand  for  dis- 
tribution amounting  to  $ of  principal  and  $ of  in- 
come. 

5.  That  before  distribution  can  be  made,  it  is  necessary  for  the 
appointment  of  an  auditor.     Wherefore  your  petitioner  prays 
your  Honorable  Court  to  appoint  an  auditor  for  the  purpose  afore- 
said. 

And  your  petitioner  will  ever  pray,  &c. 


By- 


Trustee  under  the  Witt  of 
,  deceased. 

State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 

DECREE. 

And  Now,  to  wit,  this day  of ,  1920,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of and 


FORMS  82,  83                                        619 
-,  attorneys  for  the  petitioner,  the  Court  appoints  


Auditor  of  the  estate  of  ,  deceased. 

By  the  Court : 


J- 

83.  PETITION  TO  OPEN  AN  ADJUDICATION  BASED 
UPON  AN  ERRONEOUS  STATEMENT  OF  FACT. 


In  the  Orphans'  Court  of  Philadelphia  County. 
In  re  Estate  of  -  ,  deceased. 
-  Term,  -  No.  -  . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  the  -  Company  -  ,  Executor  of  the 
estate  of  -  ,  deceased,  respectfully  represents  : 

1.  The  decedent  died  -  ,  having  made  his  last  will,  a 
copy  of  which  is  annexed  hereto  as  Exhibit  "A,"  duly  probated 
on  -  ,  on  which  the  present  letters  were  granted  to  your 
petitioner  and  leaving  to  survive  him  neither  widow  nor  issue. 

2.  Decedent  by  his  will  gave  certain  specific  and  pecuniary 
legacies,  all  of  which  have  been  paid  except  the  legacy  to  - 
of  $  -  ,  and  the  legacy  to  the  Society  -  ,  of  $  -  . 

3.  Under  a  misapprehension  of  fact  that  -  was  living 
and  that  the  Society  -  was  a  charitable  organization  in 
being  and  able  to  take,  the  first  account  of  your  petitioner  was 
duly  filed  and  called  for  audit  before  the    Honorable    -  , 
President  Judge,  who  filed  an  adjudication  on  -  ,  awarding 
to  ---  the  sum  of  $  --  ,  less  tax  and  plus  interest  and  award- 
ing to  the  Society  -  the  sum  of  $  -  ,  less  tax  and  plus 
interest  and  this  error  was  continued  in  the  schedule  of  distribu- 
tion whereby  each  were  awarded  the  sum  of  $  -  . 

4.  As  a  matter  of  fact  -  predeceased  the  testator,  whereby 
her  legacy  lapsed  and  should  have  been  distributed  among  the 
residuary  legatees  and  the  Society  -  was  never  in  existence 
or  capable  of  taking  the  said  legacy. 

5.  The  parties  now  entitled  to  the  residuary  estate  of  the  said 
decedent  are  as  follows  :  (list  them  and  show  interest)  : 

6.  Notice  of  the  intended  presentation  of  this  petition  has 
been  given  to  the  Attorney  General  of  the  Commonwealth  of 


620  FORMS  83 

Pennsylvania  and  to  the  Auditor  General  of  the  Commonwealth 

of  Pennsylvania,  by  his  local  representative,  ,  Esq.,  and 

their  joinder  herein  is  annexed  hereto. 

Wherefore  your  petitioner  prays  that  the  adjudication  of  the 
Honorable  ,  dated  ,  sur  the  first  account  of  The 

Company ,  Executor  of  the  estate  of  ,  de- 
ceased, be  opened  with  respect  to   the    award    of    $ ,    to 

the  Society  and    the    award    of    $ ,    to , 

for  the  purpose  of  review  and  that  as  thus  reopened  the  same 

be  referred  to  the  Auditing  Judge, for  a  re-audit  of  the 

said  account  as  respects  the  said  legacies  and  distribution  of  the 
same  to  the  persons  found  entitled  thereto. 

And  your  petitioner  will  ever  pray,  etc. 

The  Company  ,  Executor  of 

the  Estate  of ,  deceased. 

By 

State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  and  correct  to  the  best 
of  his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 

day  of  ,  1921. 


JOINDER. 

I,  the  undersigned,  acting  herein  for  the  Attorney  General 
of  the  Commonwealth  of  Pennsylvania,  hereby  acknowledge  that 
I  have  received  notice  of  the  intended  presentation  of  the  fore- 
going petition  and  join  in  the  prayer  therof. 


JOINDER. 

I,  the  undersigned,  acting  herein  for  the  Auditor  General  of 
the  Commonwealth  of  Pennsylvania,  hereby  acknowledge  that  I 
have  received  notice  of  the  intended  presentation  of  the  fore- 
going petition  and  join  in  the  prayer  thereof. 


FORMS  83,  84  621 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No.  . 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  on  motion  of ,  attor- 
neys for  the  petitioner,  It  is  hereby  ordered  and  decreed  that  the 
prayer  thereof  be  granted  and  that  the  adjudication  of  the  Hon- 
orable   ,  dated ,  sur  the  first  account  of  The 

Company ,  Executor  of  the  estate  of ,  deceased,  be 

opened  with  respect  to  the  award  of  $ to    the    Society 

,  and  the  award  of  $ to for  the  purpose  of 

review  and  that  as  thus  reopened  the  same  be  referred  to  the 

Auditing  Judge,  ,  for  a  re-audit  of  the  said  account  as 

respects  the  said  legacies  and  distribution  of  the  same  to  the 
persons  found  entitled  thereto. 

By  the  Court : 


J. 

84.  PETITION  FOR  THE  REVIEW  OF  AN  ADJUDICA- 
TION BY  A  KNOWN  CREDITOR  WHO  WAS 
GIVEN  NO  NOTICE  OF  AUDIT.  551 

In  the  Orphans'  Court,  County  of  Philadelphia. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

Petition  of ,  Executrix  of  the  estate  of ,  deceased, 

respectfully  represents : 

1.  That  ,  late  of  the  City  and  County  of  Philadelphia, 

died  on  the  day  of  ,  having  first  made  and  pub- 
lished his  last  will  and  testament  dated  ,  duly  probated 

in  the  office  of  the  Register  of  Wills  in  and  for  the  County  of 

Philadelphia,  on ,  and  recorded  in  Will  Book  No. , 

Page  ,  &c.,  wherein  and  whereby  he  appointed  , 

Executor  and  Trustee. 

2.  The  said ,  on  the day  of  ,  renounced 

his  right  to  act  as  such  executor,  whereupon  letters  of  adminis- 


622  FORMS  84 

tration  cum  testamento  annexe  were  issued  to and . 

died  on  the —  day  of  . 

3.  By  the  terms  of  the  said  will  his  entire  estate  was  devised 
and  bequeathed  to  the  testamentary  trustee  to  pay  one- 
third  of  the  income  to  testator's  wife, ,  for  life,  two-thirds 

for  the  maintenance  and  support  of  his  children,  and  on  the 
death  of  the  wife  and  when  the  youngest  child  should  reach  the 
age  of  twenty-one,  the  principal  to  be  divided  equally  among 
his  children  then  living  or  the  issue  of  those  deceased,  per  stirpes, 
with  the  power  in  the  executor  or  trustee  to  sell  or  mortgage  the 
real  estate,  &c.  (Here  list  parties  in  interest.) 

4-  ,  surviving  administrator  c.  t.  a.,  filed  his  first  account 

after  citation  and  the  same  came  up  for  audit  before  the  Honor- 
able   on and .    At  the  audit appeared 

for  the  accountant.     By  his  adjudication  the  learned  Auditing 

Judge  awarded  the  balance  of  personalty  $ ,  to  , 

Trustee  under  the  will  for  the  uses  and  purposes  therein  set 

forth.     This  sum  was  reduced  by  the  amount  of  $ at  a 

subsequent  audit ,  leaving  a  net  balance  of  $ ,  and 

on said  account  was  confirmed  absolutely. 

5-  on  the day  of ,  executed  and  delivered 

to ,  surviving  trustee  under  the  will  of  ,  deceased, 

his  certain  bond  in  the  penal  sum  of  $ to  secure  the  pay- 
ment of  $ at  the  expiration  of  one  year  from  the  date 

thereof,  with  interest  thereon,  payable  half-yearly  at  six  per  cent, 
per  annum,  secured  by  a  mortgage  recorded  at  Philadelphia,  in 
Mortgage  Book Page ,  covering acres  and 

perches  of  ground  on  the  side  of  Road, 

south  of Road  in  the ward  of  the  City  of  Phila- 
delphia. 

6.  By  sundry  mesne  assignments  the  last  of  which  was  re- 
corded in  the  assignment  of  mortgage  book ,  Page ,  the 

said  bond  and  mortgage  were  assigned  to and  were  owned 

by  him  and  in  his  possession  at  the  time  of  his  death. 

7.  The  said died  on  the day  of  ,  having 

first  made,  published  and  declared  his  last  will  and  testament 
wherein  and  whereby  he  appointed  your  petitioner,  executrix,  and 
letters  testamentary  were  issued  thereon  by  the  Register  of  Wills 

of  the  County  of  Philadelphia,  on  the day  of ,  and 

have  not  since  been  revoked. 


FORMS  84  623 

8.  The  said  bond  in  the  sum  of  $ was  a  valid  and  sub- 
sisting debt  of  the  decedent  at    the  time  of  his  death,  and  at  the 

time  of  the  above  audit,  with  interest  at  6  per  cent,  from 

to  date. 

9.  The Company ,  has  for  many  years  last  past 

and  is  at  this  date,  acting  as  attorney  in  fact  for  the  owner  of 
said  bond  and  mortgage,  in  the  collection  of  interest  thereon. 

10.    surviving  administrator  c.  t.  a.,  was  thoroughly 

familiar  with  this  bond  and  mortgage  as  shown  in  his  account 

signed  and  sworn  to  on ,  wherein  under  dates  of  , 

he  claims  credit  for  payment  "To Company  six  months' 

interest  on  mortgage  $ Road,  $ and  charges  himself 

in  said  account  with  rent  received  from  said  property  in  the  sum 

11.  The  said  ,  surviving  administrator  c.  t.  a.,  in  his 

petition  for  distribution  signed  and  sworn  to  on  the day 

of  ,  recites  as  follows: 

"The  unpaid  claims  of  all  creditors  of  which  the  accountant 
has  notice  or  knowledge,  with  the  amounts  of  such  claims 
and  whether  or  not  they  are  admitted  to  be  correct  are  as 
hereinafter  set  forth;  said  creditors  have  received  notice  of 
this  audit." 
and  followed  it  with  the  names  of  no  creditors  whatever. 

12.  No  notice  whatever  of  the  filing  of  the  account  of  the  said 

,  surviving  administrator  c.  t.  a.,  or  of  the  audit  thereof, 

was  given  to  the  said nor  to  the  petitioner,  his  Executrix, 

not  to  the Company ,  Agent,  and  said  account  was 

filed  and  audited,  and  distribution  decreed  entirely  without  the 
knowledge  of  any  of  them.     Whereby  grave  injustice  and  irrep- 
arable loss  has  been  worked  upon  your  petitioner  if  the  same 
be  not  remedied. 

13.  That  the  only  persons  affected  by  this  petition  are : . 

14.  Therefore  your  petitioner  prays  that  a  citation  be  awarded 

directed  to ,  commanding  them  and  each  of  them  to  appear, 

and  to  show  cause  why  the  decree  of  confirmation  of  the  said 
account,  in  so  far  as  the  rights  of  your  petitioner  are  concerned, 
should  not  be  vacated,  set  aside,  opened,  reviewed  and  corrected, 
and  why  such  order  of  restitution  on  the  parties  concerned  and 
such  other  relief  in  the  premises  as  may  be  meet  should  not  be 
decreed  to  her. 


624  FORMS  84,  85 

And  your  petitioner  will  ever  pray,  &c. 


Executrix  of  the  Estate  of , 

-Deceased. 

Commonwealth  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

the  facts  set  forth  in  the  foregoing  petition  are  true  and  correct 
to  the  best  of  her  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1919. 


-Notary  Public. 


My  commission  expires . 

And  Now,  to  wit,  this  day  of  ,  1919,  on  con- 
sideration of  the  foregoing  petition  on  motion  of  ,  attor- 
neys for  the  petitioner,  It  is  hereby  ordered  and  decreed  that  the 
prayer  thereof  be  granted,  and  that  a  citation  be  issued  directed 

to  ,  same  being  all  the  parties  in  interest,  to  appear  and 

show  cause  why  the  decree  of  confirmation  of  the  said  account 

of ,  surviving  administrator  c.  t.  a.,  of  the  estate  of , 

deceased,  on  ,  should  not  be  vacated,  set  aside,  opened, 

reviewed  and  corrected  in  so  far  as  the  rights  of  the  petitioner 
are  concerned,  and  to  show  cause  why  such  an  order  of  restitu- 
tion on  the  parties  concerned  and  such  other  relief  in  the  prem- 
ises as  may  be  meet,  should  not  be  decreed  to  her. 

Returnable  sec.  leg. 


J. 

85.  PETITION  FOR  THE  DISTRIBUTION  OF  AN  ES- 
TATE NOT  EXCEEDING  THREE  HUNDRED 
DOLLARS.  554. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term,  ,  No.  . 


FORMS  85  625 

PETITION  FOR  APPROVAL  OF  AN  ACCOUNT  OF  AN 
ESTATE  LESS  THAN  THREE  HUNDRED  DOLLARS 
UNDER  SECTION  49  (c)  OF  THE  FIDU- 
CIARIES ACT  OF  1917. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of respectfully  represents : 

1.    died  a  resident  of  Philadelphia  County,    on    the 

day  of  ,  intestate  and  without  issue,  leaving  to 

survive  her  your  petitioner,  her  husband,  as  her  sole  heir  and 
next  of  kin. 

2.  Letters  of  administration  were  granted  to  your  petitioner 

by  the  Register  of  Wills  of  Philadelphia  County,  on  the 

day  of  ,  and  a  bond  was  duly  filed  by  your  petitioner  as 

such  administrator,  wherein  the  Company  of  ,  is 

surety. 

3.  That  your  petitioner  has  prepared  and  herewith  submits 
annexed  hereto  his  first  and  final  account  as  such  administrator. 

4.  That  all  the  debts  of  the  decedent  have  been  paid  in  full 
and  your  petitioner  has  no  knowledge  of  any  credits.    Your  peti- 
tioner paid  the  funeral  bill  of  the  said  decedent  to , 

Avenue,  Philadelphia,  in  the  sum  of  $ on  the day  of 


5.  That  the  only  person  interested  in  this  estate  other  than 
your  petitioner  is  the  surety  on  his  bond,  to  wit:  Com- 
pany, of  ,  which  company  has  received  notice  of  the  in- 
tended presentation  of  this  petition  and  has  joined  in  the  prayer 
thereof. 

Wherefore  your  petitioner  prays  that  the  said  account  may  be 
approved,  your  petitioner  discharged  as  administrator  and  his 
surety  released  from  future  liability  on  the  said  bond  as  provided 
by  Section  49  (c),  of  the  Fiduciaries  Act  of  1917. 

And  your  petitioner  will  ever  pray,  etc. 


State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the  petitioner  herein  and  that  the  facts  set  forth  in  the 
40 


626  FORMS  85,  86 

foregoing  petition  are  true  to  the  best  of  his  knowledge,  informa- 
tion and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 

The  undersigned,  being  the  only  party  in  interest,  other  than 
hereby  acknowledges  that  it  has  received  notice  of  the 


intended  presentation  of  the  foregoing  petition  and  joins  in  the 
prayer  thereof. 

(Signature.) 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  foregoing  petition  and  the  annexed  account  and 

on  motion  of  ,  attorneys   for  the 

petitioner,  it  appearing  that  said  account  has  been  duly  verified, 
all  parties  in  interest  having  acknowledged  receipt  of  notice  of 
the  filing  of  this  petition,  It  is  hereby  ordered,  adjudged  and 

decreed  that ,  Administrator  of  the  estate  of  

,  deceased,  be  discharged  as  such  administrator  at  the 

expiration  of  thirty  days  from  the  date  of  this  decree  and  that  the 

Surety  Company  of  ,  be  released  from  future 

liability  on  the  bond  of  the  said  administrator,  unless  during  said 
period  of  thirty  days  exceptions  be  filed  to  the  account. 
By  the  Court : 


J. 

86.    PETITION  FOR  THE  DISCHARGE  OF  AN  EXEC- 
UTOR.   563. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of ,  one  of  the  executors  of  the  above  estate 

respectfully  represents : 

i.    That  died  ,  having  first  made  her  last  will 

and  codicil  thereto,  duly  probated ,  in  which  she  appointed 


FORMS  86  627 

your  petitioner  and Trust  Company,  executors,  and  Let- 
ters Testamentary  were  duly  granted  to  them. 

2.  On  the day  of ,  the  said  executors  filed  their 

first  account  and  on  the day  of ,  their  second  ac- 
count which  came  up  for  audit  and  were  duly  adjudicated  on 
and ,  respectively,  and  since  confirmed  absolutely. 

3.  That  the  entire  estate  has  been  paid  and  transferred  to  the 
parties  entitled  thereto. 

4.  That  no  other  money  or  property  belonging  to  the  estate  has 
been  received  by  your  petitioner  since  the  adjudication  of  the 
account. 

5.  That  the  only  parties  in  interest  are : . 

Trust  Company,  co-executor  and  all  of  said  parties  in 

interest  join  in  this  petition. 

Wherefore  your  petitioner  prays  that  he  may  be  discharged 
as  co-executor  of  the  estate  of ,  deceased. 

And  your  petitioner  will  ever  pray,  etc. 


County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  the  facts  set  forth  in  the  foregoing  petition  are  true  to  the 
best  of  his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1919. 

JOINDER. 
We,  the  undersigned,  being  all  the  parties  in  interest  in  the 

estate  of  ,  either  as  distributees    or    otherwise,    hereby 

acknowledge  that  we  have  received  notice  of  the  intended  presen- 
tation of  the  foregoing  petition  and  join  in  the  prayer  thereof. 

(Signatures.) 

DECREE. 

And  Now,  to  wit,  this day  of  ,  1919,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion    of   , 

attorneys  for  petitioner, ,  is  hereby  discharged  as  executor 

of  the  estate  of ,  deceased. 

By  the  Court : 


628  FORMS  87 

87.     PETITION    FOR    DISCHARGE    OF   ANCILLARY 
EXECUTOR.    563. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

-  Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of respectfully  represents : 

1.  That  your  petitioner  is  ancillary  executor  of  the  estate  of 

,  who  died  on  ,  in  County,    New    York, 

ancillary  letters  testamentary  having  been  granted  to  your  peti- 
tioner by  the  Register  of  Wills  of  Philadelphia  County,  on . 

2.  That  your  petitioner  duly  filed  his  first  and  final  account  in 
the  office  of  the  Register  of  Wills  of  Philadelphia  County,  and 
the  same  was  called  for  audit  before  your  Honorable  Court  on 

the day  of .     Said  account  was  confirmed  nisi  by 

adjudication  dated  ,  and  supplemental  adjudication  dated 

,  has  since  been  confirmed  absolutely. 

3.  That  the  sole  party  in  interest  and  sole  distributee  under 

the  said  adjudication  is  ,  executor  at  the  domicile  of  the 

said  decedent  who  has  filed  his  receipt  and  release  for  the  entire 
balance  of  the  account  in  the  office  of  the  Clerk  of  the  Orphans' 
Court  of  Philadelphia  County. 

4.  The  Trust  Company  is  surety  on  the  bond  of  the 

said  ancillary  executor. 

5.  The  said  executor  at  the  domicile  and  the  said  surety  are 
the  only  parties  interested  in  this  petition.     They  have  received 
notice  of  its  intended  presentation  and  have  joined  in  the  prayer 
hereof. 

Wherefore  your  petitioner  prays  that  he  may  be  discharged  as 

ancillary  executor  of  the  estate  of  ,  deceased,  and  the 

Trust  Company,  surety  on  his  bond,  released  from  future 

liability  thereon. 

And  your  petitioner  will  ever  pray,  etc. 


State  of ,  County  of 


being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  the  petitioner  herein  and  that  the  facts  set  forth  in  the 


FORMS  87,  88  629 

foregoing  petition  are  true  and  correct  to  the  best  of  his  knowl- 
edge, information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 

We,  the  undersigned,  being  the  only  parties  interested  in  the 

estate  of  ,  deceased,  hereby  acknowledge   that    we    have 

received  notice  of  the  intended  presentation  of  the  foregoing 
petition  and  join  in  the  prayer  thereof. 


Executor  at  the  domicile  of 
deceased. 


TRUST  COMPANY. 


By- 


Surety. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

Term, ,  No. . 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  on  motion  of ,  attor- 
neys for  the  petitioner,  It  is  hereby  ordered  and  decreed  that  the 

prayer  thereof  be  granted  and  ,  ancillary  executor  of  the 

estate  of ,  deceased,  is  hereby  discharged  as  such  ancillary 

executor  and  Trust  Company,  surety    on    his    bond,    is 

hereby  discharged  from  future  liability  thereon. 
By  the  Court : 


J. 

88.     PETITION  FOR  DISCHARGE  OF  ADMINISTRA- 
TOR D.  B.  N.  C.  T.  A.     563. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

Term, ,  No. . 


630  FORMS  88 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  ,  administrator  d.  b.  n.  c.  t.  a.,  of  the 

estate  of ,  deceased,  respectfully  represents : 

1.  Your  petitioner  duly  filed  his  final  account  before  your 
Honorable  Court  and  the  same  came  up  for  audit  before  the 

Honorable ,  and  for  supplemental  audit  before  the  Ho'nor- 

able  ,  and  by  an  adjudication  filed  by  Judge  on 

,  the  entire  balance  in  the  hands  of  your  accountant  was 

awarded  to ,  executors  of  the  estate  of ,  deceased, 

and  the  said  balance  was  turned  over  to  the  said  trustees  and 

their  release  and  satisfaction  of  award  duly  filed  on  the 

day  of . 

2.  Since  the  said  adjudication  no  money  or  other  property  of 
the  decedent  has  come  into  the  hands  of  your  petitioner. 

3.  All  of  said  parties  in  interest  and  the  Trust  Com- 
pany, surety  on  the  bond  of  your  petitioner,  have  received  notice 
of  the  intended  presentation  of  this  petition  and  have  joined  in 
the  prayer  thereof. 

Wherefore  your  petitioner  prays  that  he  may  be  discharged  as 
such  administrator  and  his  surety  released  from  future  liability. 
And  your  petitioner  will  ever  pray,  &c. 


Administrator  d.  b*  n.  c.  t.  a.  of  the 
Estate  of ,  deceased. 


State  of ,  County  of 


being  duly  sworn  according  to  law,  deposes  and  says 


that  he  is  administrator  d.  b.  n.  c.  t.  a.,  of  the  estate  of , 

deceased,  and  that  the  facts  set  forth  in  the  foregoing  petition 
are  true  to  the  best  of  his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  19 . 


JOINDER. 

We,  the  undersigned,  being  all  the  parties  in  interest  in  the 

estate  of  ,  deceased,  and  The    Trust    Company, 

surety  on  the  bond  of  the  administrator  of  the  estate  of  the  said 
decedent,  hereby  acknowledge  that  we  have  received  notice  of 


FORMS  88,  89  631 

the  intended  presentation  of  the  foregoing  petition  and  join  in 
the  prayer  thereof. 

(Signatures.) 

DECREE. 

And  Now,,  to  wit,  this day  of ,  1920,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 

attorneys  for  the  petitioner,  ,  is  hereby    discharged    as 

administrator  d.  b.  n.  c.  t.  a.,  of  the  estate  of  ,  deceased, 

and  the Trust  Company,  surety  on  his  bond  as  such  admin- 
istrator is  hereby  released  from  future  liability  on  said  bond. 
By  the  Court : 


I. 

89.    PETITION     FOR    THE     DISCHARGE     OF    THE 
GUARDIAN  OF  THE  ESTATE  OF  A  MINOR.  563. 

In  the  Orphans'  Court  of  Montgomery  County. 
In  re  Estate  of ,  late  a  minor. 

To  the  Honorable, — 

President  Judge  of  Said  Court: 

The  petition  of ,  Guardian  of  the  estate  of ,  late 

a  minor,  respectfully  represents: 

1.  Your  petitioner  duly  filed  his  first  and  final  account  in  your 
Honorable  Court  and  the  same  was  examined  and  audited  on 

the  first  day  of ,  and  confirmed  nisi  on ,  and  since 

confirmed  absolutely. 

2.  Under  the  terms  of  the  said  adjudication  the  balance  for 

distribution  as  shown  by    the    account,    to    wit,    $ ,    was 

awarded  to  the  said ,  and  the  same  has  been  paid  over  and 

distributed  to  her  and  her  receipt  therefor  filed  of  record. 

3.  No  money  or  other  property  has  come  into  the  hands  of 
your  accountant  since  the  filing  of  the  said  account. 

4.  All  parties  in  interest  have  received  notice  of  the  intended 
presentation  of  this  petition  and  join  in  the  prayer  thereof. 

Wherefore  your  petitioner  prays  that  he  may  be  discharged 
as  Guardian  of  the  said ,  late  a  minor,  and  his  surety  re- 
leased from  future  liability  on  his  bond. 

And  your  petitioner  will  ever  pray,  &c. 


632  FORMS  89,  90 

County  of  Philadelphia,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  the  facts  set  forth  in  the  foregoing  petition  are  true  to  the 
best  of  his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  19 . 


JOINDER. 

We,  the  undersigned,  being  the  sole  distributee  mentioned  in 
the  foregoing  petition  and  the  surety  on  the  bond  of  the  said 
Guardian,  hereby  acknowledge  that  we  have  received  notice  of 
the  intended  presentation  of  the  foregoing  petition  and  join  in 
the  prayer  thereof. 

(Signatures.) 

DECREE. 

And  Now,  to  wit,  this day  of ,  upon  considera- 
tion of  the  foregoing  petition  and  on  motion  of /attorneys 

for  petitioner,  It  is  hereby  ordered  and  decreed  that  be 

and  he  is  hereby  discharged  as  guardian  of  the  estate  of , 

late  a  minor,  and ,  the  surety  on  said  Guardians'  bond  is 

hereby  discharged  from  future  liability  thereon. 

90.    PETITION  FOR  THE  DISCHARGE  OF  SURETY 
ON  THE  BOND  OF  A  TRUSTEE.    563. 

In  the  Orphans'  Court  of  Philadelphia  County. 

Estate  of ,  deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of ,  Trustee,  respectfully  represents : 

1.  On  or  about  the day  of ,  your  petitioner  filed 

in  your  Honorable  Court  her  account  of  one-fourth  of  the  net 
proceeds  of  the  sale  of ,  which  was  a  portion  of  the  resi- 
duary estate  of  the  above  decedent. 

2.  That  by  adjudication  of   your    Honorable    Court    on    the 

,  sur  said  account,  the  same  was  approved,  and  the  balance 

shown  thereby,  to  wit:  $ was  distributed    and    awarded 

equally  between and . 


FORMS  90  633 

3.  That  the  said  fund  has  been  distributed  to  the  said  parties 
entitled  thereto,  and  their  receipt  and  release  taken  therefor,  and 
filed  of  record  in  your  Honorable  Court. 

4.  On  or  about ,  your  petitioner  filed  her  bond  in  con- 
nection with  the  above  matter,  in  the  sum  of  $ ,  wherein 

the Trust  Company  is  surety. 

5.  All  parties  in  interest  as  herein  set  forth,  including  the  said 
distributees  and  surety,  have  joined  in  the  prayer  of  this  petition. 

Wherefore  your  petitioner  prays  that  the  said  Trust 

Company  be  discharged  as  surety  on  said  bond. 
And  your  petitioner  will  ever  pray,  etc. 


State  of  ,  County  of 


,  being  duly  sworn  according  to  law,  deposes  and  says 

that  she  is  the  petitioner  named  in  the  foregoing  petition,  and  that 
the  facts  set  forth  therein  are  true  to  the  best  of  her  knowledge, 
information  and  belief. 

Sworn  and  subscribed  to  before  me  this 
day  of ,  1919. 


JOINDER. 

I,  the  undersigned,  having  received  my  full  share  of  the  pro- 
ceeds of  the  sale  of ,  from ,  Trustee  under  the  will 

of ,  deceased,  do  hereby  acknowledge  that  I  have  received 

notice  of  the  intended  presentation  of  the  petition  for  the  dis- 
charge of  the  surety  of  the  said  Trustee,  and  do  hereby  join  in 
the  prayer  thereof. 


The Trust  Company,  the  surety  named  in  the  foregoing 

petition,  hereby  acknowledges  that  it  has  received  notice  of  the 
intended  presentation  of  the  foregoing  petition,  and  joins  in  the 
prayer  thereof. 

TRUST  COMPANY, 

By- 

DECREE. 

And  Now,  to  wit,  this day  of ,  1919,  upon  con- 
sideration of  the  foregoing  petition,  and  upon  motion  of , 


634  FORMS  90,  91 

attorneys  for  petitioner,  the  Court  grants  the  prayer  thereof,  and 

the Trust  Company,  surety  on  the  bond  of ,  Trustee 

under  the  will  of  ,  deceased,  in  the  matter  of  the 

proceeds  of  the  sale  of ,  is  hereby  discharged  from  future 

liability  on  said  bond. 

By  the  Court: 


J- 

91.  PETITION  FOR  THE  APPOINTMENT  OF  A  SUB- 
STITUTED TRUSTEE  ON  THE  RESIGNATION 
OF  A  TRUSTEE.  584. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of ,  Surviving  Trustee,  respectfully  repre- 
sents : 

1.  Decedent  died ,  having  made  his  last  will  and  testa- 
ment, duly  probated  in  the  office  of  the  Register  of  Wills  of 

Philadelphia  County,  on ,  copy  of  said  will  being  hereto 

annexed  as  Exhibit  "A." 

2.  By  said  will  he  appointed and as  Trustees 

for .    The  said died  on ,  so  that  your  peti- 
tioner is  sole  surviving  trustee. 

3.  Decedent  by  his  will  gave  one-twelfth  of  his  estate  to  said 
trustees  and  the  survivor  of  them  (recite  terms  of  trust)  : 

4.  The  said is  unmarried  and  has  no  issue.    Her  heirs 

interested  in  remainder,  provided  she  makes  no  appointment  of 

the  trust  fund  by  her  will  and  dies  without  issue,  are ,  a 

brother,  ,  your  petitioner,  a  brother    and    ,    and 

« ,  nephews,  children  of  a  deceased  brother.     All  of  said 

parties  as  above  set  forth  are  living  and  of  full  age.     They  have 
received  notice  of  the  intended  presentation  of  this  petition  and 
have  joined  in  the  prayer  thereof. 

5.  Your  petitioner  as  surviving  trustee  has  filed  his  account 
in  your  Honorable  Court  and  the  same  was  called  for  audit  before 

on  ,  and  was  confirmed  nisi  in  an  adjudication 

filed; ,  and  absolutely  on  the . 


FORMS  91  635 

6.  By  said  adjudication,  a  copy  of  which  is  annexed  hereto 
as  Exhibit  "B,"  it  is  decreed  inter  alia  that  the  balance  of  prin- 
cipal composed  as  therein  set  forth  "is  awarded  to  the  incoming 
trustee  and  payment  and  distribution  is  so  decreed  with  leave  to 
make  any  and  all  necessary  assignments  and  transfers  when  he 
shall  have  been  appointed  and  qualified." 

7.  Your  petitioner  being  desirous  of  relinquishing  his  office  as 
Surviving  Trustee,  has  resigned  as  such  to  take  effect  upon  the 
appointment  and  qualification  of  his  successor. 

8.  All  parties  in  interest  have  agreed  upon  the  selection  of  the 

Trust  Company  as  Substituted  Trustee  of  this  estate  and 

the  said  company;  has  accepted  the  trust,  subject  to  the  approval 
of  your  Honorable  Court. 

Wherefore  your  petitioner  prays  that Trust  Company 

be  appointed  Substituted  Trustee  for under  the  will  of 

in  place  of ,  surviving  Trustee  who  has  resigned. 

And  your  petitioner  will  ever  pray,  etc. 


Surviving  Trustee  of  the  Estate 
of ,  deceased. 

State  of ,  County  of  ,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is  Surviving  Trustee  of  the  estate  of  ,  deceased, 

and  that  the  facts  set  forth  in  the  foregoing  petition  are  true  to 
the  best  of  his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 


JOINDER. 
We,  the  undersigned,  being  the  only  parties  interested  in  the 

estate  of  ,  deceased,  hereby  acknowledge  that  we  have 

received  notice  of  the  intended  presentation  of  the  foregoing  peti- 
tion and  join  in  the  prayer  thereof. 

(Signatures.) 

DECREE. 

And  Now,  to  wit,  this day  of ,  1920,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 


636  FORMS  91,  92 

attorney  for  the!  petitioner,  It  is  hereby  ordered  and  decreed  that 

the  prayer  thereof  be  granted  and  Trust    Company   is 

appointed  Substituted  Trustee  for  under    the    will    of 

in  place  of  ,  surviving  trustee  who  has  resigned; 

security  to  be  entered  in  the  sum  of  $ ,  and  the  bond  of 

the Trust  Company  is  hereby  approved  as  such  security. 

By  the  Court : 


J- 

93.    PETITION  FOR  THE  DISCHARGE  OF  TRUSTEE 
AND  APPOINTMENT  OF  SUBSTITUTED  TRUS- 
TEE ON  THE  RESIGNATION  OF  THE  FORMER. 
584- 
In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of ,  respectfully  represents : 

1.  That died  on  the day  of ,  a  resident 

of  Philadelphia  County,  having  first  made,  published  and  declared 

his  last  will  and  testament  and  codicil  thereto  dated ,  both 

duly  probated  in  the  office  of  the  Register  of  Wills  of  Philadel- 
phia County,  a  copy  thereof  being  hereto  annexed  as  Exhibit  "A." 

2.  By  paragraph  of  his  will  the  decedent  provided: 

(recite  terms  of  trust)  : 

3.  The  decedent  nominated and  as  Executors 

and  Trustees.    was  discharged  on .    died 

on .    died  on ,  and and  were 

appointed  as  substituted  Trustees  inter  alia  for  your  petitioner 
under  the  will  of  the  above  decedent  by  decree  of  your  Honor- 
able Court  dated  ,  security  to  be  entered  in  the  sum  of 

$ ,  which  security  was  duly  entered  by  the Company 

of  . 

4.  The   said   substituted   Trustees   desiring  to   be    discharged, 
filed  their  first  and  final  account  in  the  office  of  the  Clerk  of  the 

Orphans'  Court  and  the  same  was  called  for  audit  before , 

J.,  on ,  and  the  account  was  confirmed  nisi  on ,  and 


FORMS  92  637 

confirmed  absolutely  on  ,  a  copy  of  such  adjudication  is 

hereto  annexed  as  Exhibit  "B." 

5.  The  balance  shown  by  the  account  is  $ ,  composed  as 

follows : ,  which  balance  composed  as  in  the  account  stated 

was  awarded  in  the  said  adjudication  to  a  trustee  to  be  appointed 
for  the  purpose  of  the  trust. 

6.  The  said ,  life  tenant  upon  the  decease  of  your  peti- 
tioner, is  living  and  of  full  age  and  has  two  children,  to  wit: 

and ,  both  living  and  of  full  age  and  no  issue  of 

deceased  children.    The  same  are  all  the  parties  interested  in  this 
proceeding.    They  have  received  notice  of  the  intended  presenta- 
tion of  this  petition  and  have  joined  in  the  prayer  thereof. 

7.  Subject  to  the  approval  of  your  Honorable  Court  and  with 
the  consent  of  all  the  parties  in  interest  your  petitioner  desires 

the  appointment  of  the  Trust  Company  as  substituted 

Trustee  and  by  joinder  hereto  attached  the  present  Trustees  have 

resigned,  subject  to  the  appointment  of  the  said  Trust 

Company,  and  the  latter  has  accepted  the  trust  subject  to  the 
approval  of  your  Honorable  Court. 

Wherefore  your  petitioner  prays  that Trust  Company 

be  appointed  substituted  Trustee  under  the  will  of  ,  de- 
ceased, for in  lieu  of ,  and resigned. 

And  your  petitioner  will  ever  pray,  &c. 


State  of  ,  County  of  ,  ss: 

,  being  duly  sworn  according  to  law,  deposes  and  says 

that  she  is  the  petitioner  herein  and  that  the  facts  set  forth  in 
the  foregoing  petition  are  true  and  correct  to  the  best  of  her 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 

We,  the  undersigned,  being  the  succeeding  life  tenants  and 
remaindermen  under  the  trust  set  forth  in  the  foregoing  petition 
and  as  such,  together  with  the  parties  who  have  joined  therein, 
all  the  parties  interested  in  said  petition,  hereby  acknowledge  that 


638  FORMS  92 

we  have  received  notice  of  the  intended  presentation  of  the  said 
petition  to  the  Orphans'  Court  of  Philadelphia  County,  and  join 
in  the  prayer  thereof. 

(Signatures.) 

JOINDER. 

We,  the  undersigned, and ,  substituted  Trustees 

under  the  will  of ,  deceased,  for ,  hereby  acknowl- 
edge that  we  have  received  notice  of  the  intended  presentation  of 
the  foregoing  petition.  We  hereby  resign  as  such  substituted 
Trustees  subject  to  the  appointment  of  the  Trust  Com- 
pany as  our  successor,  said  resignation  to  take  effect  and  be 
effective  upon  the  appointment  of  the  said  succeeding  Trustee 
and  the  transfer  of  the  trust  estate  to  it  and  the  execution  and 
delivery  by  it  of  a  receipt  and  release  therefor. 

(Signatures.) 

JOINDER. 

Trust  Company,  suggested  in  the  foregoing  petition  as 

substituted  Trustee  under  the  will  of ,  for ,  hereby 

acknowledges  that  it  has  received  notice  of  the  intended  presen- 
tation of  the  foregoing  petition  and  accepts  the  appointment  of 
substituted  Trustee  subject  to  the  approval  of  the  Orphans' 
Court  of  Philadelphia  County. 

TRUST  COMPANY, 

By 


In  the  Orphans'  Court  of -Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  deceased. 

Term, ,  No. . 

DECREE. 

And  Now,  to  wit  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  on    motion    of    , 

attorneys  for  the  petitioner, and  ,  are  hereby  dis- 
charged as  substituted  Trustees  for  ,  under  the  will  of 

,  deceased ;  conditioned,  however,  upon  the  transfer  and 

delivery  of  the  assets  of  the  estate  in  accordance  with  the  adju- 
dication of ,  and Trust  Company  is  appointed  sub- 


FORMS  92,  93  639 

stituted  Trustee  for under  the  will  of ,  deceased, 

in  place  of  the  said and ,  resigned,  security  to  be 

entered  in  the  sum  of  $ ,  and  the  bond  of  the  said 

Trust  Company  is  hereby  approved  as  such  security. 
By  the  Court: 


J. 

93.  CERTIFICATE  AND  AFFIDAVIT  BY  FOREIGN 
FIDUCIARY  ENTITLED  TO  AN  AWARD  IN  DIS- 
TRIBUTION. 595. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

AFFIDAVIT  UNDER  SECTION  58  (f )  OF  THE 
FIDUCIARIES  ACT  OF  1917. 

,  being  duly  sworn  according  to  law,  deposes  and  says : 

1.  He  is  the  executor  of  the  estate  of ,  deceased,  under 

probate  dated  ,  in  His  Majesty's  High  Court  of  Justice 

in  the  District  Probate  Registry,  at ,  England. 

2.  As  such  he  is  duly  authorized  and  empowered  to  receive  all 
property  belonging  to  the  estate  of ,  deceased. 

3.  That  by  the  adjudication  of  the  Orphans'  Court  of  Phila- 
delphia County,  in  the  estate  of ,  deceased,  dated , 

there  is  distributable  to  him  one-twelfth  of  the  net  estate  of  the 
said  decedent,  subject  to  compliance  with  Section  58  (f)  of  the 
Fiduciaries  Act  of  1917. 

4.  That  there  are  no  creditors  of  the  estate  of in  the 

Commonwealth  of  Pennsylvania. 

5.  That  this  affidavit  is  made  in  compliance  with  the  require- 
ments of  Section  58  (f)  of  the  Fiduciaries  Act  of  1917. 

And  further  deponent  saith  not. 
Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 


640  FORMS  94 

94.  PETITION  FOR  THE  APPOINTMENT  OF  A 
GUARDIAN  FOR  THE  ESTATE  OF  A  MINOR 
UNDER  THE  AGE  OF  14  YEARS.  599. 

In  the  Orphans'  Court  of  Philadelphia  County. 
In  the  matter  of  the  Estate  of  Mary  Doe,  a  minor. 
Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  Mary  Doe,  by  her  father   and    next    friend, 
George  Doe,  respectfully  represents: 

1.  That  your  petitioner  is  the  daughter  of  George  Doe  and 
Sarah  Doe,  the  latter  of  whom  is  now  deceased. 

2.  That  your  petitioner  resides  with  her  father  in  Detroit, 
Michigan. 

3.  That  your  petitioner  was  born  on  the day  of , 

and  is  now  over years  of  age. 

4.  That  your  petitioner  is  the  only  child  of  Sarah  Doe,  who 

died  intestate  on  ,  leaving  to  survive  her,  her  husband, 

George  Doe,  and  your  petitioner  as  her  only  heirs  and  next  of  kin, 
whereby  your  petitioner  became  seized  of  an  undivided  one-half 
interest  in  fee  of  premises Street,  Philadelphia,  valued  at 

5.  That  proceedings  are  about  to  be  had  before  your  Honor- 
able Court  for  the  sale  of  said  property  at  private  sale  in  which 
proceedings  it  is  necessary  that  your  petitioner  be  represented 
by  guardian  to  receive  and  receipt  for  her  share  of  the  purchase 
money  and  act  for  her  in  the  conveyance  of  such  property. 

6.  That  your  petitioner  has  no  such  guardian  in  this  jurisdic- 
tion and  requests  that  your  Honorable  Court  appoint  The  Acme 
Trust  Company,  as  guardian  for  the  purpose  aforesaid. 

And  your  petitioner  will  ever  pray,  etc. 

MARY  DOE, 


By- 


Her  father  and  next  friend. 

State  of  Michigan,  County  ,  ss: 

George  Doe,  being  duly  sworn  according  to  law,  deposes  and 
says  that  he  is  the  father  of  Mar}'  Doe,  the  minor  described  in 
the  foregoing  petition ;  that  he  is  familiar  with  the  facts  set  forth 
herein  and  that  the  same  are  true  to  the  best  of  his  knowledge, 


FORMS  94,  95  641 

information  and  belief;  that  The  Acme  Trust  Company , 

suggested  as  guardian,  is  a  corporation  of  respectability  and  prop- 
erty in  which  the  interests  of  the  said  minor  may  be  safely 
entrusted ;  that  it  is  neither  executor,  administrator  or  trustee  of 
any  estate  in  which  the  said  minor  has  an  interest,  nor  surety  on 
the  bond  of  any  such  fiduciary. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


In  the  Orphans'  Court  of  Philadelphia  County. 
In  the  matter  of  the  Estate  of  Mary  Doe,  a  minor. 

1  JL  ci  III.  ^    XN  O»    --  -•    •  , 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  on  motion  of ,  attor- 
ney for  the  petitioner,   The  Acme  Trust   Company,   is  hereby 
appointed  guardian  for  Mary  Doe,  a  minor. 
By  the  Court : 


J. 

95.  PETITION  FOR  THE  APPOINTMENT  OF  A 
GUARDIAN  FOR  THE  ESTATE  OF  A  MINOR 
OVER  THE  AGE  OF  14  YEARS.  599. 

In  the  Orphans'  Court  of  Philadelphia  County. 
In  the  matter  of  the  Estate  of  Harry  Doe,  a  minor. 
Term,  1921,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of  Harry  Doe,  respectfully  represents : 

1.  That  he  is  the  son  of  Anna  Doe  and  Harry  B.  Doe,  both 
of  whom  are  living. 

2.  That  he  resides  with  his  parents  at Avenue,  Phila- 
delphia, Pennsylvania. 

3.  That  he  was  born  on  the 1  day  of ,  and  is  now 

over  fourteen  years  of  age. 

4.  Under  the  will  of ,  who  died  in ,  1920,  your 

petitioner  is  entitled  to  a  legacy  of  $ ,  and  one-third  of  the 


642  FORMS  95 

residuary  estate  of  the  said  decedent,    which    one-third    share 

amounts  to  approximately  $ .    That  in  order  to  receive  said 

legacy  and  said  share  of  the  residuary  estate  it  is  necessary  that 
your  petitioner  have  a  guardian  appointed  to  accept  and  receipt 
therefor. 

5.  That  your  petitioner  has  no  such  guardian  and  therefore 
requests  your  Honorable  Court  to  appoint  The  Acme  Trust  Com- 
pany, as  guardian  of  his  estate  as  aforesaid. 

And  your  petitioner  will  ever  pray,  etc. 


State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

Harry  Doe  being  duly  sworn  according  to  law,  deposes  and  says 
that  he  is  the  petitioner  herein  and  that  the  facts  set  forth  in  the 
foregoing  petition  are  true  to  the  best  of  his  knowledge,  informa- 
tion and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

Harry  B.  Doe  being  duly  sworn  according  to  law,  deposes  and 
says  that  he  is  the  father  of  the  minor  mentioned  in  the  foregoing 
petition  and  that  the  facts  set  forth  therein  are  true  and  correct  to 
the  best  of  his  knowledge,  information  and  belief ;  that  he  is  well 
acquainted  with  the  said  minor's  affairs  and  that  The  Acme  Trust 
Company,  suggested  as  guardian  is  a  corporation  of  respectability 
and  property  to  whom  the  estate  of  the  said  minor  can  be  safely 
entrusted,  and  that  it  is  neither  Executor,  Administrator  nor 
Trustee  of  any  estate  in  which  the  said  minor  has  an  interest,  nor 
surety  on  the  bond  of  any  such  fiduciary. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


FORMS  95,  96  643 

JOINDER. 

I,  the  undersigned,  mother  of  the  minor,  Harry  Doe,  hereby 
acknowledge  that  I  have  received  notice  of  the  intended  presenta- 
tion of  the  foregoing  petition  and  join  in  the  prayer  thereof. 


In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of  Harry  Doe,  a  minor. 
Term,  1921,  No. . 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  on  motion  of ,  attor- 
ney for  the  petitioner,  The  Acme  Trust  Company,  is  appointed 
Guardian  of  the  estate  of  Harry  Doe,  a  minor. 
By  the  Court : 


J. 

96.  PETITION  BY  GUARDIAN  FOR  LEAVE  TO  PAY 
MOTHER  OF  MINOR  INCOME  AND  PORTION 
OF  PRINCIPAL  FOR  SUPPORT.  607. 

In  the  Orphans'  Court  of  Delaware  County. 

In  the  matter  of  the  Estate  of ,  a  minor. 

Term, ,  No. . 

PETITION  FOR  LEAVE  TO  PAY. 
To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  the  Trust  Company,  Guardian  of  the 

estate  of ,  a  minor,  respectfully  represents : 

1.  That died ,  a  resident  of  Philadelphia  County, 

having  first  made,  published  and  declared  his  last  will  and  testa- 
ment, duly  probated  in  the  office  of  the  Register  of  Wills  of  Phila- 
delphia County. 

2.  That  in  and  by  his  said  will  the  decedent  nominated,  con- 
stituted and  appointed  the  Trust  Company,  testamentary 

guardian!  of  the  minor  children  of  his  late  son, ,  deceased, 

and  the  said  Trust  Company  has  since  been  appointed 


644 


FORMS  96 


guardian  of  the  estates  of  the  said  minors  by  decree    of    your 
Honorable  Court  dated . 

3.  That is  the  widow  of  the  said and  the  mother 

of  his  children. 

4.  That  the  said  


left  him  surviving 


children, 


to  wit:  — 
estates  the 


,  the  latter  three  of  whom  are  minors  of  whose 
—  Trust  Company  as  aforesaid  is  guardian. 

5.  That  the  said Trust  Company  as  guardian  of  each 

minor  is  entitled  to a share  of  the  residuary  estate 

of  the  above  decedent    which    said    share    amounts    to 

$ ,  and  the  said  guardian  is  also  entitled  to  the  same  share 

of  the  real  estate  of  the  said  decedent,  to  wit:  Street, 

which  has  been  sold  for  $ ,  and  a  ground  rent  on  

Street,  which  has  been  sold  for  $ ,  so  that  out  of  the  pro- 
ceeds of  the  sale  of  the  said  real  estate  and  ground  rent  the  said 

Trust  Company  as  guardian  for  each  minor  will  receive 

approximately  $ ,  so  that  it  will  have  a  total  fund  for  the 

benefit  of  each  of  the  said  three  minors  of  $ ,  and  from 

which  the  estimated  net  annual  income  will  amount  to  approxi- 
mately $ .     The  said  guardian  has  income  on    hand    and 

accumulated  since  the  death  of  the  said  decedent  of  approximately 
$ for  each  of  said  minors. 

6.  Neither  the  said  minors  nor  their  mother  have  any  income 
other  than  that  derived  as  aforesaid  from  their  grandfather's 
estate. 

7.  That  the  said is  now  pursuing1  a  course  of  education 

at  the University  at ,  wherein  the  annual  expense 

amounts  to  $ per  year,  being  $ •  for  tuition,  $ 

for  room  rent,  heat  and  light,  $ for  car  fares,  books,  inci- 
dental and  laboratory  fees,  $ for  board  and  $ for 

clothing. 

8.  That ,  mother  of  the  said  minors,  and  her  five  child- 
ren, among  whom  is  the  said  ,  all  reside  together  in  a 

family  home  and  residence  maintained  for  the  family  at , 

Pennsylvania,  in  maintaining  which  the  following  fixed  charges 

per  year  must  be  paid,  to  wit :  interest  on  $ ;  taxes,  $ ; 

coal}  $ •  repairs,  $ ;  gas,  water   and    electric    light, 

$ or  a  total  of  $ ,  of  which  expense  each  of  said 

minors  should  properly  bear  a share  or  $ . 


FORMS  96  645 

9.  That ,  the  mother  of  the  minor,  in  order  to  support, 

maintain  and  educate  him  commensurate  with  his  station  in  life 
and  in  a  manner  compatible  with  his  maintenance  prior  to  the 
death  of  his  father,  has  and  is  expending  annually  for  him  the 
sum  of  $ ,  exclusive  of  numerous  incidental  expenses  in- 
curred from  time  to  time  for  doctors'    and    dentists'    bills    and 
proper  disbursements  for  amusements  and  recreation  of  the  said 
minor.    This  expense  has  been  continuous  since  the  date  of  the 

death  of  the  father  of  the  said  minor, ,  on ,  and  the 

date  of  the  death  of  the  said on . 

10.  Since  the  death  of  the  said  ,  the  said has 

expended  for  the  support,  maintenance  and  education  of  the  said 

minor  the  sum  of  $ .    During  the  same  period,  owing  to  the 

fact  that  the  greater  portion  of  the  minor's  estate  consists  of  cash 

received on ,  very  little  income  has  been  received  by 

the  said  guardian.    The  income  thus  received  during  this  period 

amounts  only  to  the  sum  of  $ ,  leaving  a  deficit  of  $ , 

payment  of  which  is  desired  by  the  mother  of  the  minor  out  of 
the  corpus  of  the  estate  of  the  said  minor  in  the  hands  of  the 
said  guardian. 

11.  The  said ,  mother  of  the  minor,  as  before  stated,  has 

no  source  of  income  from  which  to  pay  the  aforesaid  necessary 
expenses  for  the  support,  maintenance  and  education  of  the  said 

minor  and  has  had  to  borrow  the  sum  above  expended  of  $ 

and  has  therefore  requested  your  petitioner  to  make  application 
to  your  Honorable  Court  for  leave  to  repay  her  the  said  sum  out 
of  the  principal  of  the  minor's  estate  and  thereafter  to  make  pay- 
ment to  her  of  the  income  for  the  future  support,  maintenance 
and  education  of  the  said  minor. 

12.  The  said  minor  is  over  the  age  of  fourteen  years  and  has 
received  notice  of  the  intended  presentation  of  this  petition  and 
has  joined  in  the  prayer  thereof. 

13.  The  affidavit  of  the  mother  of  the  said  minor  as  to  the  facts 
herein  set  forth  is  hereto  annexed. 

Wherefore  your  petitioner  prays  for  leave  and  authority  to  pay 

to ,  mother  of ,  a  minor,  out  of  the  principal  of  his 

estate  the  sum  of  $ to  reimburse  her  for  expenditures  made 

for  the  support,  maintenance  and  education  of  the  said  minor  up 

to  the day  of ,  and  for  leave  and  authority  to  pay  to 

the  said the  income  received  from  the  said  minor's  estate 


646  FORMS  96 

from  the day  of for  the  support,  maintenance  and 

education  of  the  said  minor  until  the  further  order  of  the  Court. 
And  your  petitioner  will  ever  pray,  etc. 

TRUST  COMPANY, 


By- 


Guardian  of  the  Estate  of 
,  a  minor. 

State  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 

I,  the  undersigned ,  being  one  of  the  minor  children  of 

,  deceased,  over  the  age  of  14,  hereby  acknowldge  that  I 

have  received  notice  of  the  intended  presentation  of  the  foregoing 
petition,  and  join  in  the  prayer  thereof. 


State  of  Pennsylvania,  County  of  ,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  she  is  the  mother  of ,  the  minor  mentioned  in  the  fore- 
going petition ;  that  she  is  familiar  with  the  facts  set  forth  therein 
and  that  the  same  are  true  to  the  best  of  her  knowledge,  informa- 
tion and  belief ;  that  she  has  received  notice  of  the  intended  pres- 
entation of  the  foregoing  petition  and  has  joined  in  the  prayer 
thereof. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 

DECREE. 

And  Now,  to  wit,  this day  of ,  A.  D.  1921,  upon 

consideration  of  the  foregoing  petition  and  on  motion  of , 

attorneys  for  the  petitioner,  the Trust  Company,  guardian 


FORMS  96,  97  647 

of  the  estate  of ,  a  minor,  is  hereby  authorized  and  em- 
powered to  pay  to ,  mother  of ,  a  minor,  out  of  the 

principal  of  his  estate  the  sum  of  $ ,  to  reimburse  her  for 

expenditures  made  for  the  support,  maintenance  and  education  of 

the  said  minor  up  to  the day  of ,  and  to  pay  to  the 

said  the  income  received  from  the  said  minor's  estate 

from  the day  of ,  for  the  support,  maintenance  and 

education  of  the  said  minor,  until  the  further  order  of  the  Court. 
By  the  Court : 


J. 

97.  PETITION  BY  GUARDIAN  FOR  LEAVE  TO  PAY 
INCOME  FROM  TRUST  TO  MOTHER  FOR  ITS 
EDUCATION,  MAINTENANCE  AND  SUPPORT. 

607. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  a  minor. 

Term, ,  No. . 

PETITION  FOR  LEAVE  TO  PAY. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The,  petition  of ,  Guardian  of ,  a  minor,  respect- 
fully represents: 

1.  That  your  petitioner  was  duly  appointed  guardian  of  the 

estate  of  the  said  minor,  ,  by  decree  of  your  Honorable 

Court  dated . 

2.  That  said  minor  by  the  will  of ,  who  died ,  is 

entitled  to  the  income  from  a  legacy  of  $ given  and  be- 
queathed unto  The Company ,  in  trust  for  the  said 

minor  and  from  which  estate  there  is  payable  to  her  quarterly 
under  the  terms  of  the  said  trust  the    sum    of    approximately 

3.   ,  the  father  of  said  minor,  died  on .   , 

the  mother  of  said  minor  is  still  living  and    resides    at   

Street,  in  the  City  of  Philadelphia,  where  she  maintains  a  home 
for  the  said  minor  and  herself. 

4.  The  said  minor  has  no  source  of  income  other  than  the 
trust  fund  as  above  set  forth. 


648  FORMS  97 

5.  Under  the  terms  of  the  said  trust  there  has  been  accumulated 
in  the  hands  of  the  trustee  income  in  the  amount  of  $ . 

6.  The  entire  amount  of  the  quarterly  income  from  said  trust 
as  well  as  the  accumulated  income  thereon  is  required  by  the  said 
minor  for  her  education,  maintenance  and  support  in  a  manner 
suitable  to  her  station  in  life  and  the  said  minor  and)  her  mother 
have  requested  your  petitioner  to  present  this  petition  to  your 
Honorable  Court  for  leave  to  pay  the  income  accumulated  and 
hereafter  to  be  derived  from  the  said  trust  to  the  mother  of  the 
said  minor  for  her  education,  maintenance  and  support. 

Wherefore  your  petitioner  prays  for  leave  and  authority  to 

pay  to ,  the  mother  of ,  a  minor,  the  income  on  hand 

and  accrued  from  the  trust  under  the  will  of and  the  net 

income  as  it  may  hereafter  accrue  from  the  interest  of  the  said 
minor  in  the  said  trust  fund  until  the  said  minor  arrives  at  the 
age  of  twenty-one  years  or  until  the  further  order  of  the  Court. 

And  your  petitioner  will  ever  pray,  &c. 


Commonwealth  of  Pennsylvania, 
City  and  County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  she  is  the  guardian  of ,  the  said  minor,  and  that  the 

statements  contained  in  the  foregoing  petition  are  true  to  the  best 
of  her  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1920. 

JOINDER. 

We, ,  the  mother  of ,  a  minor,  and ,  the  said 

minor  in  her  own  right,  do  hereby  acknowledge  that  we  have 
received  notice  of  the  intended  presentation  of  the  foregoing  peti- 
tion and  join  in  the  prayer  therof. 


DECREE. 

And  Now,  to  wit,  this day  of ,  1920,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 

attorneys  for  the  petitioner,  ,  Guardian  of  the  estate  of 


FORMS  97,  98  649 

,  is  hereby  authorized  and  empowered  to  pay  to  , 

the  mother  of  the  said  minor,  the  income  on  hand  and  accrued 

from  the  trust  under  the  will  of ,  and  the  net  income  as  it 

may  hereafter  accrue  from  the  interest  of  the  said  minor  in  the 
said  trust  fund  until  the  said  minor  arrives  at1  the  age  of  twenty- 
one  years  or  until  the  further  order  of  this  Court. 
By  the  Court : 


J- 

98.  PETITION  BY  GUARDIAN  OF  MINOR  TO  MAKE 
PAYMENT  OF  PRINCIPAL  IN  RELIEF  OF  DE- 
FICIENCY OF  INCOME.  607. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  a  minor. 

Term, ,  No. . 

PETITION  FOR  LEAVE  TO  MAKE  PAYMENT  OF 
PRINCIPAL. 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  The Company ,  Guardian  of  the 

Estate  of ,  a  minor,  respectfully  represents : 

1.  That  your  petitioner  was  appointed  Guardian  of  the  said 
estate  by  decree  of  your  Honorable  Court  dated . 

2.  By  decree  of  your  Honorable  Court  dated ,  your  peti- 
tioner was  authorized  to  lay  out  and  expend  and  pay  over  to  the 

mother  of  the  said  minor  income  not  exceeding  $ per  year 

for  the  support,  maintenance  and  education  of  the  said  minor. 

3.  By  decree  of  your  Honorable    Court    dated   ,    the 

mother  of  said  minor, ,  and  the  said  minor  were  allowed 

to  occupy  premises Avenue,  belonging  to  said  estate,  free 

of  rent,  the  net  rental  thereof  to  be  considered  as  part  of  the  above 
allowance. 

4.  By  decree  of  your  Honorable  Court  dated ,  the  above 

premises Avenue,  were  sold  for  a  consideration  of  $ 

in  cash  over  and  above  the  mortgage  thereon. 

5.  That  your  petitioner  has  in  hand  personalty  amounting  to 
$ ,    from   which   the   approximate   net  yearly   income   is 


650  FORMS  98 

-,  and  the  proceeds  of  the  sale  of  realty  in  the  amount  of 
from   which   the  approximate   net   yearly  income   is 
The  said  minor  is  entitled  to  all  of  the  income  from 
the  personal  estate  and  to  two-thirds  of  the  income  from  the 

real  estate  making  for  the  minor  a  net  annual  income  of  $ 

or  thereabouts,  and  for  the  mother  approximately  $ .  These 

two  items  are  the  only  sources  of  income  available  either  for  the 
minor  or  his  mother. 

6.  During  the  last  year  and  upwards  the  mother  of  said  minor, 
,  has  been  almost  continuously  confined  to  the Hos- 
pital, where  she  has  undergone  many  operations,  so  that  she  has 
been  unable  to  earn  anything  for  the  support  of  herself  or  her 
son,  and,  on  the  contrary,  has  been  compelled  to  lay  out  divers 
large  sums  of  money  for  hospital  expenses,  nurses'  and  doctors' 
bills,  medicines  and  surgical  dressings,  etc.,  to  the   extent  of 

7.  By  reason  of  said  illness  and  its  consequent  effect  upon 

her  earning  capacity  and  increase  in  living  expenses, ,  the 

mother  of  said  minor,  has  been  compelled  to  overdraw  the  income 

account  due  the  said  minor  to  the  extent  of  $ as  of , 

of  this  year. 

8.  Your  petitioner  has  been  notified  of  the  above  facts  by  the 

said ,  and  has  investigated  same  and  believes  them  to  be 

true  in  all  respects,  and  has  been  requested  by  her  to  present  this 
petition  to  your  Honorable  Court. 

Wherefore  your  petitioner  prays  for  leave  to  pay  to  the  said 

,  out  of  the  principal  of  the  personal  estate  in  its  hands  as 

Guardian  for  the  said  minor,  the    sum   of    $ ,    of    which 

shall  be  used  to  make  up  the  overdraft  of  income  and 
in  payment  of  hospital  bills,  etc. 
And  your  petitioner  will  ever  pray,  &c. 


Company ,  Guardian 


of  the  Estate  of 
By 


County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner,  and  that  the  facts 


FORMS  98,  99  651 

set  forth  in  the  foregoing  petition  are  true  to  the  best  of  his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1919. 


JOINDER. 

I,  the  undersigned,  mother  of ,  the  minor,  mentioned  in 

the  foregoing  petition,  do  hereby  acknowledge  that  I  have  received 
notice  of  the  intended  presentation  of  the  said  petition  and  join 
in  the  prayer  thereof. 

(Signature.) 

DECREE. 

And  Now,  to  wit,  this day  of ,  1919,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 

attorneys  for  the  petitioner,  it  is  hereby  Ordered  and  decreed  that 

the  prayer  thereof  be  granted  and  The Company , 

Guardian  of  the  estate  of ,  a  minor,  be  and  the  same  is 

hereby  authorized  and  empowered,  out  of  the  principal  of  the 
personal  estate  held  by  it  for  the  benefit  of  the  said  minor,  to  pay 

the  sum  of  $ ,  whereof  $ shall  be  paid  to  income 

to  reimburse  the  same  for  the  overdraft  thereon  and  $ 

shall  be  paid  to ,  mother  of  said  minor,  to  reimburse  her 

for  the  necessary  .expenses  incident  to  her  treatment  in  the 

Hospital. 

By  the  Court : 


J- 

99.  PETITION  BY  GUARDIAN  OF  MINOR  TO  MAKE 
PAYMENT  OF  A  LUMP  SUM  OUT  OF  INCOME 
TO  DEFRAY  WEDDING  EXPENSES  OF  MINOR. 
607. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  a  minor. 

Term, ,  No. . 


652  FORMS  99 

PETITION  FOR  LEAVE  TO  PAY! 
To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  ,  Guardian  of  the  Estate  of  ,  a 

minor,  respectfully  represents: 

1.  That  your  petitioner  was  duly  appointed  guardian  of  the 
estate  of  the  said  minor  by  decree  of  your  Honorable  Court  dated 
,  after  the  death  of ,  the  former  guardian. 

2.  That  the  approximate  value  of  the  estate  in  the  hands  of 

your  petitioner  as  guardian  aforesaid  is  $ ,  from  which  the 

approximate  annual  income  is  $ .    In  addition  to  this  the 

said  minor  is  entitled  to  income  from  other  funds  in  the  hands 

of  the Company ,  wherein  she  has  no  vested  right 

to  the  principal,  of  approximately  $ per  year. 

3.  By  decree  of  your  Honorable  Court  dated  ,  during 

the  period  when  the  said was  guardian  of  the  said  minor, 

the  said  guardian  was  authorized  to  pay  ,  the  mother  of 

the  said  minor,  the  sum  of  $ per  year  for  her  maintenance, 

education  and  support. 

4.  The  said  minor  is  at  present  engaged  to  be  married  and  will 
marry on  the day  of ,  and  in  order  to  pro- 
vide the  said  minor  with  a  proper  trousseau  and  defray  the  ex- 
penses incidental  to  the  said  marriage, ,  the  mother  of  said 

minor  has  requested  your  petitioner  to  pay  her  the  sum  of  $ 

out  of  the  income  on  hand  and  accrued  for  the  benefit  of  the 
said  minor  from  the  funds  in  the  hands  of  your  petitioner. 

5.  Your  petitioner  is  ready  and  willing  to  accede  to  this  request, 
but  is  not  authorized  to  do  so  without  the  approval  of  your  Honor- 
able Court. 

6.  The  said  minor  has  joined  in  the  request,  but  owing  to  the 
shortness  of  time,  it  is  impossible  to  secure  the  formal  joinders 
of  the  minor  and  her  mother  to  this  petition  prior  to  its  presenta- 
tion to  Court. 

Wherefore  your  petitioner  prays  that  he  may  be  authorized 
and  empowered  to  pay the  sum  of  $ ,  from  the  in- 
come arising  from  the  funds  in  his  hands  held  for  the  benefit  of 

,  a  minor,  the  said  sum  to  be  used  for  the  purpose  of  a 

trousseau  and  to  defray  the  expenses  incident  to  the  marriage  of 
the  said  minor  to ,  said  payment  to  be  subject  to  the  execu- 
tion by  the  said  and  the  said  ,  of  a  joinder  and 

consent  in  the  form  hereto  attached  which  joinder  and  consent 


FORMS  99  653 

when  executed  and  received  shall  be  attached  hereto  and  made 
a  part  hereof. 

And  your  petitioner  will  ever  pray,  etc. 


Guardian  of  the  Estate  of 
a  minor. 


State  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  "and  says 

that  he  is  guardian  of  the  estate  of ,  a  minor,  and  that  the 

facts  set  forth  in  the  foregoing  petition  are  true  to  the  best  of 
his  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estate  of ,  a  minor. 

Term, ,  No. .  .    ; 

JOINDER. 

Republic  of  France, 

United  States  Consulate: 

Personally  appeared  before  me  the  undersigned,  and 

,  who  being  duly  sworn  according  to  law,  depose  and  say 

that  they  have  received  notice  of  the   presentation   by   , 

Guardian  of  the  estate  of  ,  a  minor,  of  a  petition  to  the 

Orphans'  Court  of  Philadelphia  County,  for  leave  to  pay  out  of 
the  income  from  the  funds  in  his  hands  belonging  to  the  estate 

of  the  said  minor,  the  sum  of  $ ,  to  the  said ,  to  be 

used  by  her  for  the  purchase  of  a  trousseau  and  to  defray  the 
expenses  incurred  in  and  about  the  intended  marriage  of  the  said 

to  ,  and  hereby  consent  to  the  same  and  join  in 

the  prayer  thereof. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 


654  FORMS  99,  100 

It  is  hereby  ordered  and  decreed  that  the  prayer  thereof  be  granted 
and ,  guardian  of  the  estate  of ,  a  minor,  is  author- 
ized and  empowered  to  pay the  sum  of  $ from  the 

income  arising  from  the  funds  in  his  hands  for  the  benefit  of 

,  a  minor,  the  said  sum  to  be  used  for  the  purchase  of  a 

trousseau  and  to  defray  the  expenses  incident  to  the  marriage  of 
the  said  minor  to ,  said  payment  to  be  subject  to  the  execu- 
tion of  the  said and  the  said  ,  of  a  joinder  and 

consent  in  the  form  hereto  attached  which  joinder  and  consent 
when  executed  and  received  shall  be  attached  hereto  and  made  a 
part  hereof. 

By  the  Court: 


J- 

100.    PETITION  BY  TRUSTEE  TO  MAKE  PAYMENT 
TO  FOREIGN  GUARDIAN.    607. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  re  Estate  of ,  deceased. 

Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of  the Company,  respectfully  represents: 

1.  That ,  late  of  the  City  of  Philadelphia,  State  of  Penn- 
sylvania, died  ,  having  first  made  and  published  his  last 

will  and  testament  dated ,  and  codicil  thereto  dated . 

copies  of  which  are  annexed  hereto. 

2.  That  in  and  by  said  will  he  provided,  inter  alia,  as  follows, 
to  wit :  (recite  terms  of  trust)  : 

3.  That  one  ,  a  resident  of  the  City  of  ,  New 

Jersey,  duly  qualified  under  the  terms  of  said  will  as  hereinbefore 
set  forth,  has  heretofore  been  in  receipt  of   said  payment  of 
dollars  per  annum  and  is  still  so  entitled  to  said  payment. 


4.   The  said was  adjudged  a  lunatic  for  whom 


was  duly  appointed  guardian  by  the  Chancery  Court  of  New 

Jersey  on  the  day  of  ,  as  appears  by  exemplified 

copy  of  the  record  of  said  proceedings  annexed  to  this  petition 
as  Exhibit  "B." 

5.  As  will  appear  from  the  exemplified  copy  annexed  hereto, 
bond  in  the  sum  of  dollars  has  been    duly    entered    as 


FORMS  100,  101  655 

specific  security  for  the  faithful  accounting  by  said  guardian  for 

the  said  payments  to  him  of  the  said  annual  sum  of dollars 

as  hereinbefore  set  forth. 

Your  petitioner,  therefore  prays  for  leave  and  authority  to  pay 

to ,  Guardian  of ,  a  lunatic,  the  sum  of  $ per 

annum  from  the  income  of  the  said  trust  estate  of  the  said , 

known  as ,  under  the  Second  Clause  of  the  will  of , 

as  the  same  shall  from  time  to  time  become  due  and  payable. 

And  your  petitioner  will  ever  pray,  etc. 


County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  The Company,  and  that  the  facts  set 

forth  in  the  foregoing  petition  are  true  to  the  best  of  his  knowl- 
edge, information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1919. 


DECREE. 

And  Now,  to  wit,  this day  of  1919,  upon  consideration 

of  the  foregoing  petition  and  on  motion  of ,  attorneys  for 

petitioner,  the  Court  grants  the  prayer  thereof  and  authorizes 

and  directs  the Company ,  Trustee  under  the  will 

of ,  to  pay  to ,  a  lunatic,  the  sum  of dollars 

per  annum  from  the  income  of  the  said  trust  estate  of  the  said 

,  known  as  ,  under  the  Second  Clause  of  the  will 

of ,  as  the  same  shall  from  time  to  time  become  due  and 

payable. 

xoi.  PETITION  FOR  APPOINTMENT  OF  GUARDIAN 
AD  LITEM  FOR  MINORS  UNDER  THE  AGE 
OF  14  YEARS  FOR  REPRESENTATION  IN 
SALE  OF  REAL  ESTATE.  616. 

In  the  Orphans'  Court  of  Philadelphia  County. 
In  the  matter  of  the  Estate  of  John  Doe,  deceased. 

—         A  cr nij  ~~  |  X\J  o«          J«L--M-I_B  — ^ 


656  FORMS  101 

To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  Mary  Roe  and  George  Roe,  by  their  father  and 
next  friend,  Richard  Roe,  respectfully  represents: 

1.  That  your  petitioners  are  the  children  of  Jane  Roe  and 
Richard  Roe,  both  of  whom  are  living. 

2.  That  your  petitioners  reside  with  their  parents  in  Philadel- 
phia, Pennsylvania. 

3.  That  Mary  Roe  was  born  on  the day  of ,  and 

is  now  over years  of  age ;  that  George  Roe  was  born  on 

the day  of ,  and  is  now  over years  of  age. 

4.  That  your  petitioners  as  the  children  of  Jane  Roe  who  was 
a  daughter  of  Sarah  Jones,  who  was  a  daughter  of  the  above  dece- 
dent, have  a  possible  contingent  interest  in  remainder  in  the  estate 
of  the  said  decedent. 

5.  That  proceedings  are  now  pending  before  your  Honorable 
Court  for  the  sale  of  certain  real  estate  wherein  it  is  necessary 
that  your  petitioners  be  represented  by  a  guardian  ad  litem. 

6.  That  your  petitioners  have  no  such  guardian  and  therefore 

request  your  Honorable  Court  to  appoint ,  a  citizen  and 

resident  of  Philadelphia  County,  as  guardian  ad  litem  for  the 
purpose  aforesaid. 

And  your  petitioners  will  ever  pray,  etc, 

Mary  Roe. 
George  Roe. 

By 

Their  Father  and  next  friend. 

Commonwealth  of  Pennsylvania, 
County  of  Philadelphia,  ss: 

Richard  Roe  being  duly  sworn  according  to  law,  deposes  and 
says  that  he  is  the  father  of  Mary  Roe  and  George  Roe,  the 
minors  described  in  the  foregoing  petition ;  that  he  is  familiar 
with  the  facts  set  forth  therein  and  that  the  same  are  true  to  the 
best  of  his  knowledge,  information  and  belief ;  that sug- 
gested as  guardian  ad  litem  is  a  resident  of  the  City  of  Philadel- 
phia, and  is  a  person  of  respectability  and  property  in  whom  the 
interests  of  the  said  minors  may  be  safely  entrusted;  that  he  is 
neither  Executor,  Trustee  or  Administrator  of  any  estate  in  which 
the  said  minors  have  an  interest,  nor  officer  or  employe  of  any 


FORMS  101,  102  657 

such  fiduciary,  nor  surety  on  the  bond  of  any  such  fiduciary,  nor 
officer  or  employe  of  any  such  surety  on  the  bond  of  any  such 
fiduciary. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 
I,  the  undersigned,  mother  of  the  minors, and 


hereby  acknowledge  that  I  have  received  notice  of  the  intended 
presentation  of  the  foregoing  petition  and  join  in  the  prayer 
thereof. 


DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  foregoing  petition  and  on  motion  of  , 

attorneys  for  the  petitioners, is  hereby  appointed  guardian 

ad  litem  for and ,  minors ;  no  security  to  be  entered 

and  no  property  to  come  into  the  hands  of   the   said   guardian 
until  the  further  order  of  this  Court. 
By  the  Court : 


J- 

102.  PETITION  FOR  APPOINTMENT  OF  GUARDIAN 
AD  LITEM  FOR  MINOR  OVER  THE  AGE  OF  14 
YEARS  FOR  REPRESENTATION  AT  AUDIT. 
616. 

In  the  Orphans'  Court  of  Philadelphia  County. 
In  re  Estate  of  Joseph  Doe,  deceased. 
Term, ,  No. . 

To  the  Honorable,  the  Judges  of  the  Said  Court: 
The  petition  of  Emma  Roe  respectfully  represents : 

1.  That  your  petitioner  is  the  daughter  of  William  Roe  and 
Marion  Roe,  his  wife,  both  of  whom  are  living. 

2.  That  she  resides  with  her  parents  at ,  Philadelphia, 

Pennsylvania. 

3.  That  she  was  born  on  the day  of ,  and  is  now 

over  eighteen  years  of  age. 

42 


658  FORMS  102 

4.  That  your  petitioner  as  the  daughter  of  Marion  Roe  who 
is  a  daughter  of  the  above  decedent  has  a  possible  contingent 
interest  in  remainder  under  the  will  of  the  above  decedent,  a  copy 
of  which  is  annexed  hereto  as  Exhibit  "A." 

5.  That  the  account  of  and  ,  Trustees  is  now 

before  your  Honorable  Court  for  audit,  wherein  it  is  necessary 
that  your  petitioner  be  represented  by  a  guardian  ad  litem. 

6.  That  your  petitioner  has  no  such  guardian  and  therefore 
requests  your  Honorable  Court  to  appoint  William  Blackstone, 
Esq.,  as  guardian  ad  litem  for  the  purpose  aforesaid. 

And  your  petitioner  will  ever  pray,  etc. 


State  of ,  County  of ,  ss: 

Emma  Roe  being  duly  sworn  according  to  law,  deposes  and 
says  that  she  is  the  petitioner  herein  and  that  the  facts  set  forth 
in  the  foregoing  petition  are  true  to  the  best  of  her  knowledge, 
information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  192 . 


State  of ,  County  of ,  ss: 

William  Roe  being  duly  sworn  according  to  law,  deposes  and 
says  that  he  is  the  father  of  the  minor,  Emma  Roe,  mentioned 
in  the  foregoing  petition  and  that  he  is  well  acquainted  with  the 
estate  of  the  said  minor ;  that  the  facts  set  forth  in  the  foregoing 
petition  are  true  to  the  best  of  his  knowledge,  information  and 
belief;  that  William  Blackstone,  Esq.,  suggested  as  guardian,  is 
a  member  of  the  Bar  and  resident  of  the  City  of  Philadelphia, 
and  is  a  person  of  respectability  and  property  in  whom  the  inter- 
ests of  the  said  minor  may  be!  safely  entrusted ;  that  he  is  neither 
Executor,  Trustee  or  Administrator  of  any  estate  in  which  the 
said  minor  has  an  interest,  nor  officer  or  employe  of  any  such 
fiduciary,  nor  surety  on  the  bond  of  any  such  fiduciary,  nor  officer 
or  employe  of  any  such  surety  on  the  bond  of  any  such  fiduciary. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  192 . 


FORMS  102,  103  659 

JOINDER. 

I,  the  undersigned,  mother  of  the  minor,  Emma  Roe,  hereby 
acknowledge  that  I  have  received  notice  of  the  intended  presen- 
tation of  the  foregoing  petition  and  join  in  the  prayer  thereof. 


DECREE. 

And  Now,  to  wit,  this  day  of  ,  192 ,  upon 

consideration  of  the  foregoing  petition,  William  Blackstone,  Esq., 
is  hereby  appointed  guardian  ad  litem  for  Emma  Roe,  a  minor; 
no  money  or  other  property  to  come  into  the  hands  of  the  said 
guardian  and  no  security  to  be  entered  until  the  further  order  of 
this  Court. 

By  the  Court: 


J. 

103.  PETITION  BY  GUARDIAN  FOR  LEAVE  TO  EN- 
TER SECURITY  TO  RECEIVE  AWARD  FROM 
FOREIGN  JURISDICTION. 

In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estates  of ,  minors. 

Term, ,  No. . 

PETITION  FOR  LEAVE  TO  ENTER  SECURITY. 
To  the  Honorable,  the  Judges  of  the  Said  Court: 

The  petition  of  The Company ,  respectfully  rep- 
resents : 

1.  That  your  petitioner  was  duly  appointed  guardian  of  the 
estates  of  the  above  minors,  all  of  whom  are  under  the  age  of 

fourteen  years,  by  decree  of  your  Honorable  Court  dated , 

without  bond,  the  purpose  of  said  appointment  being  to  receive 

the  minors'  share  of  the  estate  of  their  father, ,  deceased, 

of  Philadelphia  County,  ( ),  amounting   to   the   sum    of 

$ net. 

2.  The  said  minors  are  also  entitled  to  the  sum  of  $ 

now  in  the  hands  of  the Trust  Company  of ,  New 

Jersey,  the  same  being  the  proceeds  from  the  sale  of  real  estate 
and  said  sum  being  composed  as  follows :  $ . 


660  FORMS  103 

3.    ,  father  of  said  minors  died  in  ,  leaving  to 

survive  him,  his  widow, ,  who  is  the  sole  heir  and  next  of 

kin  of  said  minors.    She  has  received  notice  of  the  intended  pres- 
entation of  this  petition  and  joins  in  the  prayer  thereof. 

4.  All  parties  in  interest  desire  the  transfer  of  the  said  fund 

from  the  said Trust  Company  of ,  New  Jersey,  to 

your  petitioner  as  guardian  of  the  said  minors  and  to  secure  same 
it  is  necessary  that  security  be  entered  therefor. 

Wherefore  your  petitioner  prays  that  it  be  given  authority  to 

enter  security  in  your  Honorable  Court  in  the  sum  of  $ ,  as 

security  for  the  transfer  to  your  petitioner  of  the  sum  of  $ — , 

composed  as  hereinabove  set  forth  from  the Trust  Com- 
pany of ,  New  Jersey. 

And  your  petitioner  will  ever  pray,  etc. 

THE COMPANY,  Guardian. 


By- 


State  of  Pennslyvania, 
County  of  Philadelphia,  ss: 

being  duly  sworn  according  to  law,  deposes  and  says 

that  he  is of  the  corporation  petitioner,  and  that  the  facts 

set  forth  in  the  foregoing  petition  are  true  to  the   best   of    his 
knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  1921. 


JOINDER. 

I,  the  undersigned,  being  the  only  party  in  interest,  in  the  fore- 
going petition  other  than  The  Company,    Guardian    of 

,  minors,  hereby  acknowledge  that  I  have  received  notice 

of  the  intended  presentation  of  the  foregoing  petition  and  join  in 
the  prayer  thereof. 


In  the  Orphans'  Court  of  Philadelphia  County. 

In  the  matter  of  the  Estates  of ,  minors. 

Term, ,  No. . 


FORMS  103  661 

DECREE. 

And  Now,  to  wit,  this day  of ,  1921,  upon  con- 
sideration of  the  annexed  petition  and  on    motion    of    , 

attorneys  for  the  petitioner,  It  is  hereby  ordered  and  decreed  that 

the  prayer  thereof  be  granted  and  that  The  Company 

,  guardian  of  the  estates  of  ,  be  and  the  same  is 

hereby  authorized  and  empowered  to  enter  security  in  the  sum  of 

$ ,  as  security  for  the  transfer  to  the  said  guardian  by  the 

Trust  Company  of  ,  New  Jersey,  of  a  fund  of 

$ ,  composed  of  $ ,  being  the  amount  due  said  minors 

from  the  sale  of  certain  real  estate  in  New  Jersey,  and  the  bond 

of  the  said  The Company ,  is  hereby  approved  as 

such  security. 

By  the  Court : 


J. 


TABLE  OF  ACTS  OF  ASSEMBLY 
REPEALED 

(References  are  to  sections.    Unless  otherwise  noted  the  re- 
peal is  absolute.) 

Sec. 

1705  Sec.  i,  2,  5  &  8 i  Sm.  L.  33 291 

Sec.  3,  4,  6  &  7  i  Sm.  L.  33 253 

1705-6  Jan.  12  2  St.  at  L.  198,  Ch.  134 623 

1713  Mar.  27  Sec.  i,  8  &  g i  Sm.  L,.  81 166 

Sec.  2-7,  10-13 i  Sm.  L.    81  623 

Sec.  14,  15  &  16 i  Sm.  L.  81  291 

1772  Mar.  21  i  Sm,  L.  383 623 

Sec.  5 i  Sm.  L.  389 623 

1777  Mar.  14  i  Sm.  L.  443  in  part  291 

1779  Oct.  9  i  Sm.  L.  473  623 

1791  April    6  Sec.  5 3  Sm.  L.    20 291 

April  13  Sec.  5,  6,  18 3  Sm.  L.    28 166 

Sec.  8 3  Sm.  L.    28 623 

Sept.  30  Sec.  2 3  Sm.  L.    58 291 

1792  Mar.   31    3  Sm.  L.    66 623 

1794    April  19  Sec.  i,  2,  14-21  3  Sm.  L.  143 623 

Sec.  3,  13-18 3  Sm.  L.  143 352 

Sec.  22 3  Sm.  L.  143 65 

Sec.  23 3  Sm.  L.  143 253 

Sec.  24 3  Sm.  L.  143 166 

1797    April    4  Sec.  1-4,  9  3  Sm.  L.  296 623 

Sec.  5,  6,  7 3  Sm.  I/.  296 352 

Sec.  8 3  Sm.  L.  296  in  part  65 

Sec.  10 3  Sm.  L.  296 253 

1800    Mar.    10   3  Sm.  L,.  433 623 

1802    April    2    P.  L.     133    623 

1804  Mar.   12   P.  L.    271    623 

April    2   P.  L.    459   65 

1805  April     i    P.  L.    205    65 

1807  April    7  Sec.  6,  7,  8 P.  L.    155    65 

April    7  Sec.  9 P.  L.     155  in  part 65 

April    7  Sec.  10 P.  L.     155    212 

April    7  Sec.  ii  P.  L.    155    253 

1808  Mar.    26  Sec.  2   P.  L.     144   65 

Mar.  26  Sec.  3  P.  L.    144   623 

1810  Mar.   19  P.  L.      96   253 

1811  April    i  Sec.  i  P.  L.    198   253 

April     i  Sec.  2 P.  L.     198   623 

1814  Feb.      7    P.  L.      44   623 

1815  Mar.   13   P.  L.    173    352 

663 


664  ACTS  REPEALED 

Sec 

1818  Feb.  17 P.  L.  104  in  part 623 

Mar.  10  P.  L.  183  623 

Mar.  24  Sec.  7  P.  L.  285  in  part 623 

1819  Jan.  21  P.  L.   25  352 

Feb.   8  Sec.  2 P.  L.   58 623 

1821  Feb.   5  Sec.  2  P.  L.  25  1 .  623 

Mar.  30  P.  L.  153  623 

Mar.  31  Sec.  2  P.  L.  178  623 

1823  April  i  P.  L.  286  623 

1824  Feb.  18  Sec.  I  P.  L.   25  in  part 623 

1825  Mar.  22  P.  L.  107  in  part 623 

1826  April  8  Sec.  I  P.  L.  255  623 

April  8  Sec.  2 P.  L.  255  212 

1828  April  10  Sec.  3 P.  L.    285    623 

April  14  Sec.  I  &  2 P.  L.    453  in  part 623 

April  14  Sec.  5  &  6 P.  L.    484   65 

1829  April    3  Sec.  I  &  2 P.  L.     122 623 

1830  April    6  Sec.  5 P.  L.    272   291 

April    7   P.  L,    347    623 

1832  Mar.   15  Sec.    1-5,   7-13,   17,   25,  P.  L.    135    291 

3i,  32,  36,  38,  39,  42, 

43 

Mar.   15  Sec.  6,  14,  16,  18-24,  26-  P.  L.    135   623 

30,  43,  44 

Mar.   15  Sec.  II  P.  L.    135   253 

Mar.    15  Sec.  40,  42 P.  L.    135   166 

Mar.   29  Sec.  1-4,  52,  55-60 P.  L.     190   166 

Mar.   29  Sec.  5-34,  47,  53,  54  •  •  •  P-  L-     190   623 

Mar.  29  Sec.  35 P.  L.    190   253 

Mar.  29  Sec.  36-46,  48-51 P.  L.    190   65 

1833  April    6   P.  L.    207   352 

April    8   P.  L.    249   253 

April    8   P.  L.    315    352 

1834  Feb.    24  Sec.  1-41,  43,  45-61,  66-  P.  L.      73   623 

68. 

Feb.    24  Sec.  42,  44,  46 P.  L.      73   65 

April  14  Sec.  52,  57  P.  L.    341    166 

1835  April  14  Sec.  1,3  P.  L.    275   623 

April  14  Sec.  2 P.  L.    275    65 

April  14  Sec.  4 P.  L.    275    166 

1836  Mar.   ii  Sec.  12,  13  P.  L.      76  in  part 623 

June    14  Sec.  15-21,  23-26 P.  L.    628  in  part 623 

June   16  Sec.  i  P.  L.    682   212 

June   16  Sec.  2 P.  L.    682   166 

June   16  Sec.  3  P.  L.    682   623 

June   16  Sec.  19 P.  L.    784   166 

June   16  Sec.  20,  22  P.  L.    784  in  part 166 

1838    Mar.    17  Sec.  3  P.  L.      80  in  part 623 


ACTS  REPEALED  665 

Sec. 

1840    April  13  Sec.  1,2  P.  L.    319   623 

April  13  Sec.  4   P.  L.    319   65 

Oct.    13  Sec.  i  P.  L.  1841-1    623 

1842  Mar.    12  Sec.  5 P.  L.      66   623 

July    1 6  Sec.  52 P.  L.    374    623 

1843  April    4  Sec.  8 P.  L.     131  in  part 166 

April  13  Sec.  22 P.  L.    237    623 

April  24  Sec.  8 P.  L.    359   65 

1844  April    6   P.  L.    214   65 

May      6  Sec.  2 P.  L.    364   253 

1845  April  15  Sec.  I  P.  L.    458   65 

1846  April  20  Sec.  2,  3  P.  L.    411  in  part 166 

April  21  Sec.  i  P.  L.    426   65 

April  21  Sec.  2 P.  L.    430   166 

April  22  Sec.  9 P-  L.    476   623 

April  22  Sec.  i  P.  L.    483   623 

1847  Mar.    13   P.  L.    319   65 

Mar.    16  Sec.  2 P.  L.    474   212 

1848  Jan.    27    P.  L.      16   253 

Feb.     8   P.  L.      27   623 

April  ii  Sec.  7  &  ii  P.  L.    536   253 

April  1 1  Sec.  9 P.  L.    536  in  part 352 

April  ii  Sec.  9 P.  L.    536  in  part 623 

1849  Mar.    14  P.  L.    164  in  part 623 

April    9  Sec.  2 P.  L.    511    623 

April    9  Sec.  4 P.  L.    524  in  part 65 

April    9  Sec.  5,  13,  16 P.I/.    524   623 

April  10  Sec.  2 P.  L.    591  in  part 65 

April  10  Sec.  10 P.  L.    591    623 

1850  Mar.    14  Sec.  I  P.  L.    195  in  part 623 

April  25  Sec.  i,  5,  44 P-  L-    569   623 

April  25  Sec.  2 P.  L.    569   65 

April  25  Sec.  10 P.  L.    569  in  part 65 

April  25  Sec.  18 P.  L.    569   166 

April  26  Sec.  22,  23  P.  L.    577  in  part 65 

April  26  Sec.  22,  23  P.  L.    577  in  part 623 

April  26  Sec.  25 P.  L.    577    623 

May    15  Sec.  8 P.  L.    764   623 

1851  April    3  Sec.  1-5    P.  L.    3°5    212 

April    3  Sec.  6 P.  L.    305    623 

April    3  Sec.  10 P.  L.    305    291 

April  14  Sec.  5 P.  L.    612   623 

April  15  Sec.  18 P.  L.    669    623 

1853  Feb.      2   P.  L.      31    623 

Feb.    23   P.  L.      98   623 

April  18  Sec.  1-8,  10 P.  L.    503    212 

1854  Feb.    20  Sec.  i  P.  L.      89  in  part 65 

Mar.     6  Sec.  I P.  L.    155  in  part 166 


666  ACTS  REPEALED 

S«c. 

1854  Mar.   27  Sec.  i    . . . . » P.  L.    214  in  part 623 

April  13  Sec.  i  &  3 P.  L.    368   212 

April  13  Sec.  2 P.  L.    368  in  part 623 

May     5    P.  L.     57O  623 

1855  April  12   P.  L.    214    ..  65 

April  26  Sec.  1 1  P.  L.    328  in  part 253 

April  27  Sec.  i  P.  L.    368  in  part 253 

April  27  Sec.  2 P.  L.    368   352 

April  27  Sec.  3 P.  L.    368  in  part 352 

April  27  Sec.  4 ! P.  L.    368  in  part 65 

April  27  Sec.  5 P.  L.    368   212 

May     3  Sec.  2-5 P.  L.    415  in  part 623 

May     4  Sec.  i  &  6 P.  L.    430   253 

May      4  Sec.  5   P.  L.    43O  352 

May     4  Proviso  of  Sec.  7 P.  L.    430  352 

1856  April  ii  Sec.  4 P.  L.    315    623 

April  17  Sec.  i  &  2 P.  L.    386 65 

April  19  Sec.  4  &  5  P.  L.    458 291 

April  21    P.  L.    495    623 

April  22  Sec.  7 P.  L.    532    291 

April  22  Sec.  8 P.  L.    532    .*. 623 

April  22  Sec.  10 P.  L.    532  in  part 65 

1857  May    14   P.  L.    507  in  part 352 

1859    Mar.   13   P.  L.    611    623 

Mar.  22  Sec.  I P.  L.    207   623 

April    6   P.  L.    384   623 

April    7   P.  L.    406   623 

April    8   P.  L.    425  in  part 623 

April  13   P.  L.    604   623 

1861    May     I    P.  L.    420   623 

May      i    P.  L.    43*  in  part 623 

May      i    P.  L.  680  in  part  623 

1863  April    i    P.  L.    187   212 

April    i    P.  L.    205   166 

April  ii    P.  L.    341   65 

1864  Mar.   17   P.  L.      53   623 

April  18   P.  L.    462   212 

April  23    P.  L.    550  623 

April  27   P.  L.    641  in  part 65 

Aug.  25    P.  L.  1029  623 

1865  Mar.   22   P.  L.      31  in  part 65 

Mar.   27   P.  L.      44  in  part} 623 

Mar.   27   P.  L.      45    65 

Nov.  27   P.  L.  1866-1227    623 

1866  April  17   P.  L.    108   212 

April  17    P.  L.    in  in  part 623 

May    17   P.  L.  1096   623 

1867  Jan.      7    P.  L.  1367   65 


ACTS  REPEALED  667 

Sec. 

1867  Feb.   13  P.  L.    160  65 

Mar.   23  Sec.  12 P.  L.      43   212 

April  15    P.  L.      86   623 

1868  April    9    P.  L.    785  in  part 623 

April  14   P.  L.      97   623 

April  28   P.  L.     105    65 

1869  Feb.    18  Sec.  i P.  L.    183   623 

Feb.    26   P.  L.        4  in  part 65 

Mar.   30   P.  L.      15  in  part 65 

April  12    P.  L.      27    623 

April  13    P.  L.      28  in  part 65 

April  17    P.  L.      70   623 

April  17    P.  L.      72    623 

April  20  Sec.  I P.  L.      77    253 

April  20  Sec.  2 P.  L.      77   65 

1871  May    17  (Act  No.  250)    P.  L.    269  in  part 623 

May    17  (Act  No.  251)   P.  L.    269   623 

May   23    P.  L.    274   65 

May    25    P.  L.    279   623 

June    15    P.  L.    387  in  part 623 

1872  April    8    P.  L.      44   623 

1874  May    14   P.  L.     156  in  part 65 

May    14    P.  L.     166   65 

May    15    P.  L.     194   623 

May    15    P.  L.     195    623 

May    19  Sec.  2,  4,  6,  10 P.  L.    206   166 

May    19  Prov.  to  Sec.  6 P.  L.    206   623 

June     8   P.  L.    277   212 

1875  Mar.     4   P.  L.       5   166 

Mar.    18  P.  L.      29   166 

1876  April    9   P.  L.      19  in  part 166 

April  28    P.  L.      SO  in  part 623 

May     8   P.  L.     133   623 

May     8    P.  L.     140   65 

1877  Feb.    16  P.  L.       3  in  part 623 

Mar.  24   P.  L.      37   291 

1878  May    22  Sec.  I  &  2  P.  L.      83  in  part... 623 

May    24  P.  L.    131    166 

1879  April  ii  Sec.  i,  2,  3 P.  L.      21    623 

May      i    P.  L.      40  in  part 65 

June     4    P.  L.      84  in  part 166 

June     4    P.  L.      84  in  part 623 

June     4 P.  L.      88 253 

1881  May  10  P.  L.  14  in  part 623 

June  10  P.  L.  86  253 

June  10  P.  L.  106  623 

1883  June  4  P.  L.  65  623 

June  4  P.  L.  74  623 


668  ACTS  REPEALED 

Sec. 

1883    June  5 P.  L.      88  352 

June  13    P.  L.      91    166 

June  20    P.  L.    131    352 

June  27    P.  L.    163    623 

1885    June  5    P.  L.      78  in  part .,..  166 

June  24   P.  L.    155    291 

June  24    P.  L.     ISS    623 

June  30   P.  L.    203    623 

June  30   P.  L.    251    352 

1887    April  13    P.  L.      53    352 

May  19  Prov.  of  Sec.  I P.  L.     125    352 

May  25    P.  L.    261    352 

May  25    P.  L.    264   253 

June  6   P.  L.    359   291 

1889    April  4   P.  L.      23    65 

April  22    P.  L.      42    623 

April  23    P.  L.      48   291 

May  7   P.  L.     102  in  part 166 

May  8   P.  L.    123  in  part 623 

May  9   P.  L.    146   65 

May  9  ( ist  Prov.  of  Sec.  i)..   P.  L.     168  352 

May  9    P.  L.     182 623 

May  13    P.  L.    190   623 

1893    May  19  Sec.  2 P.  L.    no   623 

May  31    P.  L.    188   166 

May  31    P.  L.     1 88  in  part 291 

June  3    P.  L.    273  in  part 623 

June  8  Sec.  5 P.  L.    344   253 

June  8 P.  L.    356   623 

June  8    P.  L.    392   623 

June  12    P.  L.    461    65 

1895    May  8   P.  L.      44  in  part 623 

May  22   P.  L.     114  in   part 65 

June  18    P.  L.     197    623 

June  24  Sec.  i  P.  L.    236   623 

June  24    P.  L.    237  in  part 65 

June  24    P.  L.    248  in  part 623 

June  25    P.  L.    305    291 

June  26    P.  L.    381  in  part 65 

1897    June  14   P.  L.    142  in  part 352 

June  14  Sec.  I  P.  L.     144   212 

June  15  Sec.  i  &  2  P.  L.     159  212 

June  23    P.  L.    200   623 

July  9   P.  L.    213  in  part 253 

July  12   P.  L.    256   253 

July  14   P.  L.    269   623 

1899    April  28   P.  L.    120   623 

April  28   P.  L.    157    623 


ACTS  REPEALED  669 

Sec. 

1901  May  II  P.  L.  174  in  part 623 

May  21  P.  L.  272  623 

June  10  P.  L.  55i  352 

June  10  P.  L.  553  in  part 65 

June  14  P.  L.  562  623 

July  10  Sec.  2,  3,  4 P.  L.  639  352 

1903  Mar.  5  P.  L.  10  623 

Mar.  26 P.  L.  70  352 

April  3  P.  L.  151  in  part 65 

April  22  P.  L.  241  212 

1905  Feb.  28  P.  L.  26  291 

Mar.  16  P.  L.  42  in  part 623 

Mar.  30  P.  L.  77  623 

Mar.  31  P.  L.  91  623 

April  6  P.  L.  1 14  623 

April  14  P.  L.  153  623 

April  18  P.  L.  208 166 

April  22  Prov.  to  Sec.  I  P.  L.  297  352 

1907  Mar.  22  P.  L-  29  623 

May  23  P.  L.  201  ". 623 

May  28  P.  L.  271  in  part 623 

June  i  P.  L.  364  in  part 65 

June  I  : P.  L.  384  in  part 623 

1909  April  i  P.  L.  79  291 

April  i  P.  L.  87  352 

April  i  P.  L.  95  in  part 166 

April  i  P.  L.  95  in  part 623 

April  23  P.  L.  156  in  part 212 

April  27  P.  L.  202  in  part 623 

May  3  P.  L.  386  623 

May  3  P.  L.  391  in  part 623 

May  6  P.  L.  459  623 

May  8  P.  L.  489  in  part 65 

1911  April  21  P.  L.  79  253 

April  27  P.  L.  87  291 

June  i  Sec.  3  &  4 P.  L.  539  in  part 352 

June  7  P.  L.  702  in  part 253 

June  8  P.  L.  709  166 

June  9  Sec.  i,  2,  3 P.  L.  724  623 

June  9  P.  L.  744  623 

June  10  P.  L.  870  623 

June  10  P.  L.  874  623 

June  13  P.  L.  890  623 

1913  May  23  P.  L.  304  65 

May  23  P.  L.  344  623 

May  23  P.  L.  345  212 

May  28  P.  L.  369  623 

May  28  P.  L.  373  623 


670  ACTS  REPEALED 


1915 


occ. 

June   12    

P.  L. 

470  

623 

July    19  

P.  L. 

844  

166 

July    21    

P.  L. 

872   

352 

July    21    

P.  L. 

875  

352 

July    21    

P.  L. 

877  

....     623 

July    22    

P.  L. 

908  , 

623 

April  15    

P.  L. 

124  

253 

April  21    

P.  L. 

i45   

253 

April  21    

P.  L. 

156  

166 

May      3    

P.  L. 

218  

623 

May     3   

P.  L. 

234  

352 

May     6  

P.  L. 

265   

....    623 

May     6   

P.  L. 

267  

....    623 

May      6   

P.  L. 

269  in  part  

....      65 

May    14    

P.  L. 

475   

....     623 

May   28   

P.  L. 

580  in  part  

352 

May   28   

P.  L. 

635    

212 

June     I    

P.  L. 

682    

623 

June     i    

P.  L. 

689    

....      623 

June   ii    

P.  L. 

949   

623 

TABLE  OF  ACTS  OF  ASSEMBLY  RE- 
FERRED TO  IN  COMMISSIONERS' 
REPORT 

(References  are  to  Sections.) 


1683 

noth  Law  

...294,  309,  316,  318,  322,345 

1684 

I72nd  Law  

...294,  309,  3i6,  318,  322,345 

1693 

3  Sm.  L.  I54n  

.  .  .294,  309,  316,  318,  322,  345 

1700 

3  Smi.  L.  155"  

345 

1705 

Sm.  L.  33  

215,  242,265 

Sm.  L.  33,  Sec.  i  

266,  270 

Sm.  L.  33,  Sec.  3  

218 

Sm.  L.  33,  Sec.  4  

220 

Sm.  L.  33,  Sec.  6  

241 

Sm.  L.  33,  Sec.  7  

221 

3  Sm.  L.  15611  

294,  316,  318,322 

3  Sm.  L.  15611,  Sec.  2  

346 

3  Sm.  L.  i56n,  Sec.  8  

294 

3  Sm.  L.  15611,  Sec.  10  

294 

3  Sm.  L.    I57n,  Sec.  5  

345 

1713 

Mar.  27    i  Sm.  L.   81   

579 

i  Sm.  L.  81,  Sec.  2  

385,  387 

i  Sm.  L.  81,  Sec.  7  &  12  .  . 

599 

i  Sm.  L.  81,  Sec.  8  

127 

i  Sm.  L.  81,  Sec.  16  

274 

1764 

Mar.   23    3  Sm.  L.    15911,  Sec.  2  

294,  309 

1772 

Mar.  21     i  Sm.  L.   383  

470 

Sm.  L.  383,  Sec.  i  

466 

Sm.  L.  383,  Sec.  5  

357 

Sm.  L.  383,  Sec.  7  

467 

1777 

Mar.    14       Sm.  L.   443,  Sec.  3  

255 

Sm.  L.  443,  Sec.  6  

261 

1787 

Sept.  29    2  Sm.  L.  425  

348 

1791 

Mar.   12    3  Sm.  L.   8,  Sec.  i  

255,258 

April    6    3  Sm.  L.   20,  Sec.  5  

262,  465 

April  13    3  Sm.  L.    28  

517 

3  Sm.  L.  28,  Sec.  8  

5i8 

3  Sm.  L.  28,  Sec.  18  

278,  285 

Sept.  30    3  Sm.  L.   58,  Sec.  2  

285 

1792 

Mar.   31    3  Sm.  L.   66  

459 

3  Sm.  L.  66,  Sec.  1-3  

460 

3  Sm.  L.  66,  Sec.  4  

491,  493 

3  Sm.  L.  296,  Sec.  8  

17 

April  19    3  Sm.  L.   143  

340,  415 

3  Sm.  L.  143,  Sec.  i  

382 

671 

672  ACTS  REFERRED  TO 

1792  April  19  3  Sm.  L.  143,  Sec.  3  294,  309,  563 

3  Sm.  L.  143,  Sec.  4  294,309 

3  Sm.  L.  143,  Sec.  5  316 

3  Sm.  L.  143,  Sec.  6  316,318 

3  Sm.  L.  143,  Sec.  7  3*6 

3  Sm.  L.  143,  Sec.  8  318 

3  Sm.  L.  143,  Sec.  9  -  346 

3  Sm.  L.  143,  Sec.  10  344 

3  Sm.  L.  143,  Sec.  n  318 

3  Sm.  L.  143,  Sec.  12  322 

3  Sm.  L.  143,  Sec.  14  391 

3  Sm.  L.  143,  Sec.  15  304,552-3 

3  Sm.  L.  143,  Sec.  16  553 

3  Sm.  L.  143,  Sec.  18  345 

3  Sm.  L.  143,  Sec.  19  432 

3  Sm.  L.  143,  Sec.  20  434 

3  Sm.  L.  143,  Sec.  21  36, 430 

3  Sm.  L.  143,  Sec.  22  2,  n,  13, 17 

3  Sm.  L.  143,  Sec.  23  243 

April  4  3  Sm.  L  296,  Sec.  1-2  340,387 

3  Sm.  L.  296,  Sec.  4  418 

3  Sm.  L.  296,  Sec.  5  295,316,318 

3  Sm.  L.  296,  Sec.  7  3*8 

3  Sm.  L.  296,  Sec.  9 542 

1800  Mar.  12  3  Sm.  L.  433  493 

3  Sm.  L.  433,  Sec.  1,2  493, 494 

3  Sm.  L.  433,  Sec.  3  360, 493,  944 

3  Sm.  L.  433,  Sec.  4,  5  493,  494 

1802  April  2  3  Sm.  L.  499  441 

1803  Mar.  28  Sec.  4 388 

1804  Mar.  12  P.  L.  271  459 

Mar.  12  P.  L.  271,  Sec.  i  460 

April  2  P.  L.  459,  Sec  i  30 

1805  April  i  P.  L.  205,  Sec.  i  50 

1807  April  7  P.  L.  155,  Sec.  6  26 

P.  L.  155,  Sec.  7  30 

P.  L.  155,  Sec.  8  15 

P.  L.  155,  Sec.  9  19 

P.  L.  155,  Sec.  10 432 

1808  Mar.  26  P.  L.  144,  Sec.  i  24 

P.  L.  144,  Sec.  2  30 

1810  Mar.  19  P.  L.  96  233 

1811  April  i  P.  L.  191,  Sec.  2  432 

1812  Mar.  31  5  Sm.  L.  395  214 

1814  Feb.   7  P.  L.  44,  Sec.  i  362 

1818  Feb.  17  P.  L.  104,  Sec.  i  572 

Mar.  10  P.  L.  183  459 

P.  L.  183,  Sec.  1-3  460 

Mar.  24  P.  L.  285,  Sec.  7  520 


ACTS  REFERRED  TO  673 

1819    Jan.    21    P.  L.    25  340 

1821    Feb.      5    P.  L.  25,  Sec.  2  460 

Mar.   30    P.  L.  153,  Sec.  i  605 

P.  L.  153,  Sec.  3  608 

P.  L.  153,  Sec.  4  563 

1823  Mar.   31    P.  L.  216  59 

P.  L.  216,  Sec.  i  487 

April    i    P.  L.  286,  Sec.  i  542 

P.  L.  286,  Sec.  2  561 

1824  Feb.    18    P.  L.    25   528 

1825  Mar.  22    P.  L.  107,  Sec.  1-2    587 

1826  April    7    P.  L.  227,  Sec.  5  380 

April    8    P.  L.  255   432 

1828  April  14    P.  L.  453,  Sec.  1-2 587 

P.  L.  484,  Sec.  5  39 

P.  L.  484,  Sec,  6 58,  59 

1829  April    3    P.  L.  122  384 

P.  L.  122,  Sec.  2  526 

1830  April  6  P.  L.  272,  Sec.  5  289 

P.  L,.  272,  Sec.  9  255 

1832  Mar.  15  P.  L.  135,  Sec.  i  255, 256 

P.  L.  135,  Sec.  2  257 

P.  L.  135,  Sec.  3  . . .- 258 

P.  L.  135,  Sec.  4  261 

P.  L.  135,  Sec.  5  262 

P.  L.  135,  Sec.  6  355,  590 

P.  L.  135,  Sec.  7  267,591 

P.  L.  135,  Sec.  8 268 

P.  L.  135,  Sec.  9  269 

P.  L.  135,  Sec.  10  265 

P.  L.  135,  Sec.  ii  220,265 

P.  L.  135,  Sec.  13  278 

P.  L.  135,  Sec.  14  380 

P.  L.  135,  Sec.  15  392, 539 

P.  L.  135,  Sec.  16  384 

P.  L.  135,  Sec.  17  270 

P.  L.  135,  Sec.  18  359 

P.  L.  135,  Sec.  19  360 

P.  L.  135,  Sec.  20  361 

P.  L.  135,  Sec.  21  356 

P.  L.  135,  Sec.  22  357 

P.  L.  135,  Sec.  23  364 

P.  L.  135,  Sec.  24  382 

P.  L.  135,  Sec.  25  280 

P.  L.  135,  Sec.  26  400 

P.  L.  135,  Sec.  27  385 

P.  L.  135,  Sec.  28  387 

P.  L.  135,  Sec.  29  542 

P.  L.  135,  Sec.  30  542 

P,  L.  135,  Sec.  31  285 

43 


674  ACTS  REFERRED  TO 

1832  Mar.  15  P.  L.  135,  Sec.  32 274 

P.  L.  135,  Sec.  36  289 

P.  L.  135,  Sec.  37  287 

P.  L.  135,  Sec.  38  288 

P.  L.  135,  Sec.  40  158 

P.  L.  135,  Sec.  41  .  160 

P.  L.  135,  Sec.  42  163, 286 

P.  L.  135,  Sec.  44  388 

1832  Mar.  29  P.  L.  190,  Sec.  2  74 

P.  L.  190,  Sec.  4  93 

P.  L.  190,  Sec.  5  S99,6oo 

P.  L.  190,  Sec.  6  601 

P.  L.  190,  Sec.  8  605 

P.  L.  190,  Sec.  9  606 

P.  L.  190,  Sec,  10  608 

P.  L.  190,  Sec.  ii  563 

P.  L.  190,  Sec.  12 570,575 

P.  L-  190,  Sec.  13  607 

P.  L.  190,  Sec.  14 528 

P.  L.  100,  Sec.  15  544 

P.  L.  190,  Sec  16  550 

P.  L.  190,  Sec.  17  536 

P.  L.  190,  Sec.  18  537 

P.  L.  190,  Sec.  19 552,  555 

P.  L.  190,  Sec  20 346,  543 

P.  L.  190,  Sec  21  563 

P.  L.  190,  Sec  22  566,579 

P.  L.  190,  Sec  23 580 

P.  L.  ioo,  Sec  24  578 

P.  L.  190,  Sec  25  579 

P.  L.  190,  Sec  26  567,575 

P.  L.  190,  Sec  27  569,577 

P.  L.  190,  Sec  28  581 

P.  L.  190,  Sec  29 561 

P.  L.  ioo,  Sec  30  562 

P.  L.  190,  Sec  31,  Cl.  I  432 

P.  L.  190,  Sec  31,  Cl.  II  433 

P.  L.  190,  Sec  31,  CL  III  432 

P.  L.  190,  Sec  32  302,448 

P.  L.  190,  Sec  33  434 

P.  L.  190,  Sec  34  436 

P.  L.  ioo,  Sec  35  248 

P.  L.  ioo,  Sec  36  2, 4, 8,  22, 45 

P.  L.  ioo,  Sec  37  11,17,23 

P.  L.  ioo,  Sec  38  12, 17 

P.  L.  ioo,  Sec  39  13,  15, 17 

P.  L.  190,  Sec  40 15, 18 

P.  L.  ioo,  Sec  41  26 

P.  L.  ioo,  Sec  42  30 

P.  L.  ioo,  Sec.  43  39,  620 


ACTS  REFERRED  TO  675 

1832  Mar.  29    P.  L.  190,  Sec.  44 50 

P.  L.  190,  Sec.  45  19 

P.  L.  190,  Sec.  46  4, 15,17 

P.  L.  190,  Sec.  47  42,  441,  442 

P.  L.  190,  Sec.  48  43 

P.  L.  190,  Sec.  49  43 

P.  L.  190,  Sec.  50 58 

P.  L.  190,  Sec.  51   59 

P.  L.  190,  Sec.  52  109 

P.  L.  190,  Sec.  53  109,616 

P.  L.  190,  Sec.  54  438 

P.  L.  190,  Sec.  55  159 

P.  L.  190,  Sec.  56  155 

P.  L,.  190,  Sec.  57  116,  132,145 

P.  L.  190,  Sec.  57,  Cl.  I  5 

P.  L.  190,  Sec.  57,  Cl.  IV  120 

P.  L.  190,  Sec.  57,  Cl.  VI  122 

P.  L.  190,  Sec.  57,  Cl.  VII  123 

P.  L.  190,  Sec.  57,  Cl.  IX  &  X 125 

P.  L.  190,  Sec.  57,  Cl.  XI  127-9 

P.  L.  190,  Sec,  57,  Cl.  XV .' 136 

P.  L.  190,  Sec.  57,  Cl.  XVI 147 

P.  L.  190,  Sec.  57,  Cl.  XVII 137 

P.  L.  190,  Sec.  57,  Cl.  XVIII 138 

P<  L.  190,  Sec.  57,  Cl.  XIX  140 

P.  L.  190,  Sec.  57,  Cl.  XXI  143 

P.  L.  190,  Sec.  57,  Cl.  XXV 133 

P.  L.  190,  Sec.  58  107,112 

P.  L.  190,  Sec.  59  163 

P.  L.  190,  Sec.  60  150 

1833  April    6    P.  L.  207,  Sec.  i  341 

April    8    P.  L.  249,  Sec.  i,  2,  3  214 

P.  L.  249,  Sec.  4 224 

P.  L.  249,  Sec.  5  223 

P.  L.  249,  Sec.  6 215 

P.  L.  249,  Sec.  7,  Cl.  I  218 

P.  L.  249,  Sec.  7,  Cl.  II  219 

P.  L.  249,  Sec.  8  221 

P.  L.  249,  Sec.  9  230 

P.  L.  249,  Sec.  10  228 

P.  L.  249,  Sec.  ii  245 

P.  L.  249,  Sec.  12  233,  266 

P.  L.  249,  Sec.  13  241 

P.  L.  249,  Sec.  14 242 

P.  L.  249,  Sec.  15-16   243 

P.  L.  249,  Sec.  17 250 

P.  L.  249,  Sec.  18,  252 

P.  L.  315,  Sec.  i  294 

P.  L.  315,  Sec.  i,  Cl.  I  295 

P.  L.  315,  Sec.  i,  Cl.  II  296 


676  ACTS  REFERRED  TO 

1833  April    8    P.  L.  315,  Sec.  2,  CL  I 309 

P.  L.  315,  Sec.  2,  CL  II  310 

P.  L.  315,  Sec.  2,  CL  HI  3« 

P.  L.  315,  Sec  2,  CL  IV 3" 

P.  L.  315,  Sec.  3 3i6 

P.  L.  315,  Sec.  4,  CL  I .       318 

P.  L.  315,  Sec.  4,  CL  II 319 

P.  L.  315,  Sec.  4,  CL  III 321 

P.  L.  315,  Sec.  4,  CL  IV 320 

P.  L.  315,  Sec.  5  3i6 

P.  L.  315,  Sec.  7  322 

P.  L.  315,  Sec.  8  323 

P.  L.  315,  Sec.  9  332 

P.  L.  315,  Sec.  10 340 

P.  L.  3^5,  Sec.  ii 332 

P.  L.  315,  Sec.  12  348 

P.  L-  3iS,  Sec.  13  344 

P.  L.  315,  Sec.  14  343 

P.  L.  315,  Sec.  15  3^4 

P.  L.  315,  Sec.  16  346 

P.  L.  315,  Sec.  17  333 

P.  L.  315,  Sec.  19 345 

P.  L.  315,  Sec.  20 349 

1834  Feb.    24    P.  L.  73,  Sec.  i  39* 

P.  L.  73,  Sec.  2  401 

P.  L.  73,  Sec.  3  399 

P.  L.  73,  Sec.  4 403 

P.  L.  73,  Sec.  5  394 

P.  L.  73,  Sec.  6  395 

P.  L.  73,  Sec.  7  396 

P.  L.  73,  Sec.  8  397 

P.  L.  73,  Sec  9  398 

P.  L.  73,  Sec  10 402 

P.  L.  73,  Sec  ii  399 

P.  L.  73,  Sec  12  493 

P.  L.  73,  Sec  13  491 

P.  L.  73,  Sec  14  494 

P.  L.  73,  Sec  15  459 

P.  L.  73,  Sec  16  463 

P.  L.  73,  Sec  17  461 

P.  L.  73,  Sec  18  459,462 

P.  L.  73,  Sec   19   38,455,496 

P.  L.  73,  Sec  20  430 

P.  L.  73,  Sec  21  415 

P.  L.  73,  Sec  22,  23  416 

P.  L.  73,  Sec  24,  25  418 

P.  L.  73.  Sec  26  517 

P.  L.  73,  Sec.  27  518 

P.  L.  73,  Sec  28  512,522 

P.  L.  73,  Sec  29  515 


ACTS  REFERRED  TO  677 

1834  Feb.  24  P.  L.  73,  Sec.  30 468,  516 

P.  L.  73,  Sec.  31  363 

P.  L.  73,  Sec.  32  520 

P.  L.  73,  Sec.  33  426-7 

P.  L.  73,  Sec.  34  422 

P.  L.  73,  Sec.  35  428 

P.  L.  73,  Sec.  36  429 

P.  L.  73,  Sec.  37  521 

P.  L.  73,  Sec.  38  552 

P.  L.  73,  Sec.  39  555 

P.  L.  73,  Sec.  40  555 

P.  L.  73,  Sec.  41  37,  447,  553 

P.  L.  73,  Sec.  42  36 

P.  L.  73,  Sec.  43  437 

P.  L.  73,  Sec.  44  34 

P.  L.  73,  Sec.  44  34 

P.  L.  73,  Sec.  45  37,  43, 447 

P.  L.  73,  Sec.  46  40,  469 

P.  L.  73,  Sec.  47  466, 555 

P.  L.  73,  Sec.  48  466 

P.  L.  73,  Sec.  49  469 

P.  L.  73,  Sec.  50  470 

P.  L.  73,  Sec.  51  467 

P.  L.  73,  Sec.  52-6  470 

P.  L.  73,  Sec.  57, 58  553 

P.  L.  73,  Sec.  59  47* 

P.  L.  73,  Sec.  60  472 

P.  L.  73,  Sec.  61  473 

P.  L.  73,  Sec.  66  262, 465 

P.  L.  73,  Sec.  67  362 

P.  L.  73,  Sec.  68  365 

April  14  P.  L.  34i,  Sec.  37-41  75 

P.  L.  341,  Sec.  55  85 

P.  L.  34i,  Sec.  56  88 

P.  L.  34i,  Sec.  57  108 

1835  April  14  P.  L,.  275,  Sec.  2  6 

P.  L.  275,  Sec.  4  164 

1836  Mar.  ii  P.  L.  76,  Sec.  12  565 

June  14  P.  L.  628,  Sec.  6  388 

P.  L.  628,  Sec.  16,  17  565 

P.  L,.  628,  Sec.  18 587 

P.  L.  628,  Sec.  19-21  565 

P.  L.  628,  Sec.  23-26  587 

June  16  P.  L.  682,  Sec.  2  164 

P.  L.  682,  Sec.  3  592 

P.  L.  767  130 

P.  L.  784,  Sec.  19  93 

P.  L.  784,  Sec.  19,  Cl.  I V 98 

P.  L.  784,  Sec.  19,  Cl.  V 100 

P.  L.  784,  Sec.  19,  Cl.  VI  101 


678  ACTS  REFERRED  TO 


1836    June   16    P.  L.  784,  Sec.  19,  Cl.  VII  
P.  L.  784,  Sec.  19,  Cl.  VIII  
P.  L.  784,  Sec.  19,  Cond  
P.  L.  784,  Sec.  20  
P.  L.  784,  Sec.  21  
P.  L.  784,  Sec.  22  

102 
104 
106 
146 
107 
151 

1838    Mar.   17    P.  L.  80,  Sec.  2   

•      589 

1839    July      2    P.  L.  559,  

87 

1840    April  13    P.  L.  319,  Sec.  i  

552 

P.  L.  319,  Sec  4  

a 

1840    June     3    P.  L.  593,  Sec.  i  

260 

Oct    13    P.  L.  (1841)  i,  Sec.  i  

551 

1842    Mar.    12    P.  L.  66,  Sec.  5    

592 

April    5     P.  L.  234,  Sec.  9  

2 

P.  L.  234,  Sec.  15  

63 

July     16    P.  L.  374,  Sec.  52  

425 

July    27    P.  L.  439,  Sec.  15  

179 

1843    April    4    P.  L.  131,  Sec.  8   

75 

April  13    P.  L.  235,  Sec.  10  

130 

April  24    P.  L.  359,  Sec.  8  

4 

1844    April    6    P.  L.  214,  Sec.  I   

24 

May      6    P.  L.  364,  Sec.  2   

234 

1845    April  15    P.  L.  458,  Sec  i  

30 

June  18    P.  L.  197  

418 

1846    April  20    P.  L.  411,  Sec  2  

161 

P.  L.  4",  Sec  3  

162 

April  21     P.  L.  426,  Sec.  i   

2 

P.  L.  430,  Sec.  2  

131 

April  22    P.  L.  483,  Sec  i  

566,584 

1847    Mar.    13    P.  L.  319,  Sec.  I,  first  part  

2 

P.  L.  319,  Sec  i,  last  part  

14 

1848    Jan.    27    P.  L.  16,  Sec.  i  

216 

Feb.      8    P.  L.  27,  Sec.  i   

459 

April  ii    P.  L.  536,  Sec.  7  

214 

P.  L.  536,  Sec.  ii  

245,296 

1849    April    2    P.  L.  511,  Sec.  2  

464 

April    9    P.  L.  524,  Sec.  4  

42 

P.  L.  524,  Sec.  5  

514 

P.  L.  524,  Sec  13  

520 

P.  L.  524,  Sec.  16  

445 

April  10    P.   L.   591,   Sec.    10    

2,8,584 

1850    Mar.    14    P.  L.  195,  Sec  I  &  2  

495 

April  25    P.  L.  569,  Sec  i   

579 

P.  L.  569,  Sec.  2  

31 

P  .L.  569,  Sec.  10  

20 

P.  L.  569,  Sec.  18  

89 

P.  L.  569,  Sec  44  

603 

April  26    P.  L.  577,  Sec.  22-3  

59,487 

May    15    P.  L.  764,  Sec.  8  

592 

ACTS  REFERRED  TO  679 

1851     April    3    P.  L.  305,  Sec.  1-4  185 

P.  L.  305,  Sec.  5  437 

P.  L.  305,  Sec.  6 460 

P.  L.  305,  Sec.  10 260 

April  14    P.  L.  612,  Sec.  5   403,  404,406 

April  15    P.  L.  669,  Sec.  18  512-22 

1853  Feb.      2    P.  L.  31,  Sec.  i 564 

Feb.    23    P.  L.  98,  Sec.  i   474-7 

P.  L.  98,  Sec.  2  478 

P.  L.  98,  Sec.  3  479 

P.  L.  98,  Sec.  4  480 

April  18    P.  L.  503,  Sec.  i   168,  170, 203 

P.  L.  503,  Sec.  2  175, 180, 182 

P.  L.  503,  Sec.  3  •  183 

P.  L.  503,  Sec.  4  174,  184,  192-4,  437,  439 

P.  L.  503,  Sec.  5  186,  187,208 

P.  L.  503,  Sec.  6  186,  189,  190, 192 

P.  L.  503,  Sec.  7  171 

P.  L.  503,  Sec.  8  210 

P.  L.  503,  Sec.  10 102 

1854  Feb.    20    P.  L.  89,  Sec.  i   51,52,56 

Mar.     6    P.  L.  155,  Sec.  i   85 

Mar.  24    P.  L.  214,  Sec.  I  524 

April  13    P.  L.  368,  Sec.  I  195 

P.  L.  368,  Sec.  2  528 

P.  L.  368,  Sec.  3  168 

1854  May     5    P.  L.  57°,  Sec.  i   522 

1855  April  12    P.  L.  214,  Sec.  I   57 

April  26    P.  L.  328,   Sec.   n    222 

April  27    P.  L.  368,  Sec.  I 231 

P.  L.  368,  Sec.  2  323, 343 

P.  L.  368,  Sec.  3  334 

P.  L.  368,  Sec.  4  8,9 

P.  L.  368,  Sec.  5  168 

May      3    P.  L.  4*5,  Sec.  5    587 

May     4    P.  L.  430,  Sec.  i   245, 296 

P.  L.  430,  Sec.  5  306, 307 

P.  L.  430,  Sec.  6  226 

P.  L.  430,  Sec.  7  338 

1856  April  ii    P.  L.  315,  Sec.  4  559 

April  17    P.  L.  386,  Sec.  i  51,52,53 

P.  L.  386,  Sec.  2  9,  33 

April  19    P.  L.  458,  Sec.  4   273 

April  21    P.  L.  486,  Sec.  i   168 

P.  L.  495,  Sec.  i  596 

P.  L.  495,  Sec.  2  597 

April  22    P.  L.  532,  Sec.  2  461 

P.  L.  532,  Sec.  7  276 

P.  L.  532,  Sec.  8 383,  494 

P.  L.  532,  Sec.  10  16 


68o 


ACTS  REFERRED  TO 


1857 

Mar. 

14 

P. 

L. 

97,  Sec.  3  

175 

May 

14 

P. 

L. 

507,  Sec  

337 

1858 

April 

21 

P. 

L. 

413,  Sec  

337 

1859 

Mar. 

13 

P. 

L. 

611,  Sec.    *  

586 

Mar. 

22 

P. 

L. 

207,  Sec  

439 

April 

6 

P. 

L. 

384,  Sec  

519 

April 

7 

P. 

L. 

406,  Sec  

566,575,578 

P. 

L. 

406,  Sec.  6  

571 

April 

8 

P. 

L. 

425,  Sec  

403 

April 

13 

P. 

L. 

604,  Sec  

559 

P. 

L. 

611,  Sec  

586 

1861 

May 

i 

P. 

L. 

420  

482 

P. 

L. 

420,  Sec.  i  

487 

P. 

L. 

420,  Sec.  2  

488 

P. 

L. 

431,  Sec.  i   

442 

P. 

L. 

431,  Sec.  2  

443-4 

P. 

L. 

680,  Sec.  i  

566,573,575 

P. 

L. 

680,  Sec.  2  

568 

1863 

April 

i 

P. 

L. 

187  

195 

P. 

L. 

205,  Sec.  i   

156 

April 

ii 

P. 

L. 

341,  Sec.  i   

44 

1864 

Mar. 

17 

P. 

L. 

53,  Sec.  i  

538 

April 

18 

P. 

L. 

462,  Sec.  i  

173 

April 

23 

P. 

L. 

550  

584 

April 

27 

P. 

L. 

641,  Sec.  i   

45 

Aug. 

25 

P. 

L. 

1029,  Sec.  i  

604 

1865 

Mar. 

22 

P. 

L. 

30  

176 

P. 

L. 

31,  Sec.  i   

4 

Mar. 

27 

P. 

L. 

44,  Sec.  i,  2,  3  

582 

P. 

L. 

45,  Sec.  I  

3« 

Nov. 

27 

P. 

L. 

(1866)   1227  

410,4" 

1866 

April 

II 

P. 

L. 

78o   

176 

April 

17 

P. 

L. 

108  

195 

P. 

L. 

in,  Sec.  i  

5«2 

May 

17 

P. 

L. 

1096,  Sec.  i   

471 

P. 

L. 

1096,  Sec.  2  

487,488 

1867 

Jan. 

7 

P. 

L. 

1367,  Sec.  i  

27 

Feb. 

13 

P. 

L. 

160  

4 

Mar. 

23 

P. 

L. 

43,  Sec.  i  

195 

P. 

L. 

43,  Sec.  2  

208 

April 

15 

P. 

L. 

86  

542 

1868 

April 

2 

P. 

L. 

:o,  Sec.  7  

287 

April 

9 

P. 

L. 

785,  Sec.  i   

574 

April 

14 

P. 

L. 

97,  Sec.  i   

508 

P. 

L. 

97,  Sec.  2  

509 

P. 

L. 

97,  Sec.  3  

51° 

P. 

L. 

97,  Sec.  4  

5" 

April 

28 

P. 

L. 

105,  Sec.  i    

38 

1869 

Feb. 

18 

P. 

L. 

183  

550 

Feb. 

26 

P. 

L. 

4,  Sec.  I  

2 

ACTS  REFERRED  TO  681 

1869    Mar.     18    P.  L.  409  497 

Mar.   27     P.  L.  488 605 

Mar.   30    P.  L.  15,  Sec.  i   54 

April  12    P.  L.  27   512-22 

April  13    P.  L.  28,  Sec.  i   43 

April  17    P.  L.  70,  Sec.  i 469,  539 

P.  L.  72,  Sec.  i   501 

P.  L.  72,  Sec.  2  502 

P.  L.  72,  Sec.  3  504 

P.  L.  72,  Sec.  4  505 

P.  L.  72,  Sec.  5,  6  503 

April  20    P.  L.  77,  Sec.  i   245 

P.  L.  77,  Sec.  2  a 

1871  May    17    P.  L.  269 373 

P.  L.  269,  Sec.  i  469, 588 

May  23  P.  L.  274,  Sec.  i  37,46 

P.  L.  274,  Sec.  2  37 

May  25  P.  L.  279,  Sec.  i  596 

June  15  P.  L.  387 421 

P.  L.  387,  Sec.  i  461 

1872  Feb.    27    P.  L.  173  271 

April    8    P.  L.  44,  Sec.  I  592 

1873  Mar.   27    P.  L.  49,  Sec.  I   130 

1874  May    14    P.  L.  156,  Sec.  i  55 

P.  L.  156,  Sec.  2  51 

P.  I,.  156,  Sec.  3  3 

P.  L.  166 32 

May  15  P.  L.  194,  Sec.  i,  2  358 

P.  L.  195,  Sec.  i  592 

May  19  P.  L.  206,  Sec.  I  67 

P.  L.  206,  Sec.  2  69 

P.  L.  206,  Sec.  3  68 

P.  L.  206,  Sec.  4  108 

P.  L.  206,  Sec.  6  93,  549 

P.  L.  206,  Sec.  7  , 114 

P.  L.  206,  Sec.  8  ; 163 

P.  L.  206,  Sec.  9  107 

P.  L.  206,  Sec.  10  86 

May   24    P.  L.  131,  Sec.  1-4  70-73 

June     8    P.  L.  277,  Sec.  i   172 

1875  Mar.     4    P.  L.  5,  Sec.  I   75 

Mar.    18    P.  L.  29,  Sec.  I   91,  no,  548 

1876  April    7    P.  L.  19 69 

April  28    P.  L.  50,  Sec.  I  446 

May     8    P.  L.  133,  Sec.  i  528 

Mar.  24    P.  L.  37,  Sec.  I  287 

P.  L.  140,  Sec.  i   23 

1877  Feb.    16    P.  L.  3,  Sec.  i  381 

P.  L.  37,  Sec.  2  256 


682  ACTS  REFERRED  TO 

1878  May    22    P.  L.  83,  Sec.  i   441 

P.  L.  83,  Sec.  2-3  447 

P.  L.  98,  Sec  i  593 

May    24    P.  L.  131,  Sec.  5   ill 

1879  April  ii    P.  L.  21  95 

P.  L.  21,  Sec.  i 617 

P.  L.  21,  Sec.  2 •'      618 

P.  L.  21,  Sec.  3,4   619 

May      i    P.  L.  40 8 

June     4    P.  L.  84  550 

P.  L.  88,  Sec.  i  227 

P.  L.  88,  Sec.  2  235 

P.  L.  88,  Sec.  3 229 

1881    May     5    P.  L.  12 68 

May    10    P.  L.  14 582 

June   10    P.  L.  96,  Sec.  1,2  225 

P.  L.  106 559 

1883    June     4    P-  L.  65,  Sec.  I   449 

P.  L.  74,  Sec.  i  407 

P.  L.  74,  Sec.  2  408 

P.  L.  74,  Sec.  3  409 

June     5    P.  L.  88,  Sec.  i  334 

June   13    P.  L.  91  68 

P.L.  97, 68 

June  20    P.  L.  131  341 

June  27    P.  L.  163,  Sec.  i  594 

1885     May   28    P.  L.  24,  Sec.  I  593 

June     5    P.  L.  78  148,561 

June  24    P.  L.  155,  Sec.  I  273,368 

P.  L.  155,  Sec.  2  368 

P.  L.  155,  Sec.  3  369 

P.  L.  155,  Sec.  4  370 

P.  L.  155,  Sec.  5  373-4 

P.  L.  155,  Sec.  6  375 

P.  L.  155,  Sec.  7  379 

June   30    P.  L.  203,  Sec.  1,2  560 

P.  L.  251,  Sec.  i  343 

1887    April  13    P.  L.  53,  Sec  i  338-9 

April  28    P.  L.  72 68 

May    19    P.  L.  125,  Sec.  i  338 

May    23    P.  L.   158   153 

May   25    P.  L.  261,  Sec.  i,  Cl.  I-IV  325-331 

P.  L.  261,  Sec  2  332 

P.  L.  264,  Sec.  i  226 

June      i     P.  L.  359,  Sec  I   281 

June     3    P.  L.  332  214 

June     6    P.  L.  359,  Sec.  2  282 

P.  L.  359,  Sec.  3  283 

P   L.  359,  Sec.  4  284 


ACTS  REFERRED  TO 


683 


x889 

April 
April 
April 

4 

22 
23 

P. 
P. 
P. 

L. 
L. 
L. 

23,  Sec.  i  
42,  Sec.  i  
48,  Sec.  i   

61 
532-4 
275 

April 

25 

P. 

L. 

52  . 

87 

May 

7 

P. 

L. 

IO2, 

Sec. 

»3 

May 

8 

P. 

L. 

123, 

Sec. 

598 

May 

9 

P. 

L. 

146, 

Sec. 

2 

P. 

L. 

168, 

Sec. 

338 

P. 

L. 

182, 

Sec. 

450 

May 

13 

P. 

L. 

190 

598 

P. 

L. 

190, 

Sec. 

i  

596 

P. 

L. 

190, 

Sec. 

2    

597 

1891 

May 

20 

P. 

L. 

98,  Sec.  i   

593 

1893 

May 

19 

P. 

L. 

no, 

Sec 

2    

454 

May 

3i 

P. 

L. 

188, 

Sec. 

I    

90,  271 

P. 

L. 

188, 

Sec. 

2    

90,  272 

June 

3 

P. 

L. 

273, 

Sec. 

I,   2,   3    

583 

June 

8 

P. 

L. 

344, 

Sec. 

5  

214 

P. 

L. 

356, 

Sec. 

I    

483 

P. 

L. 

392, 

Sec. 

I    

418 

P. 

L. 

392, 

Sec. 

2    

456 

P. 

L. 

392, 

Sec. 

3  

457 

P. 

L. 

392, 

Sec. 

4  

458 

June 

12 

P. 

L. 

461 

30 

P. 

L. 

461, 

Sec. 

i   

32 

1895 

Mar. 

28 

P. 

L. 

$1 

68 

May 

8 

P. 

L. 

44, 

Sec. 

i   

483-6,490 

P. 

L. 

44,  Sec.  2  

486 

P. 

L. 

44,  Sec.  3 

,4  

489 

May 

22 

P. 

L. 

114, 

Sec. 

i  

47 

June 

24 

P. 

L. 

236, 

Sec. 

i   

512-22 

P. 

L. 

237, 

Sec. 

i   

29 

P. 

L. 

248, 

Sec. 

1,2    

390 

June 

25 

P. 

L. 

305, 

Sec. 

I    

276 

June 

26 

P. 

L. 

38i, 

Sec. 

1,2    

4 

1897 

May 

19 

P. 

L. 

72, 

Sec. 

22    

163 

June 

M 

P. 

L. 

142, 

Sec. 

I    

334 

P. 

L. 

144 

182 

P. 

L. 

144, 

Sec. 

I    

175,177 

June 

15 

P. 

L. 

159 

177 

P. 

L. 

159, 

Sec. 

6    

189 

June 

23 

P. 

L. 

200, 

Sec. 

I    

593 

July 

9 

P. 

L. 

213, 

Sec. 

I    

232 

July 

12 

P. 

L. 

256 

234 

July 

14 

P. 

L. 

268 

175 

P. 

L. 

269, 

Sec. 

I    

481-2 

P. 

L. 

269 

Sec. 

2    

488 

1899 

April 

28 

P. 

L. 

1  20, 

Sec. 

I    

471 

P. 

L. 

157, 

Sec. 

I    

459 

P. 

L. 

157,  Sec. 

2    

461 

684  ACTS 

1899    April  28    P.  L.  157,  Sec.  3  462 

P.  L.  157,  Sec.  4 463 

1901    April    4    P.  L.  66 452 

April  ii    P.  L.  71  68 

May     2    P.  L,  117 68 

May    ii    P.  L.  174,  Sec.  1,2  5*5 

May    21     P.  L.  272,  Sec.  I   '       449 

P.  L.  272,  Sec.  2  450 

June     7    P.  L.  513 449 

June  10    P.  L.  S5i,  Sec.  i  334 

P.L.553 4 

June   14    P.  L.  562,  Sec.  i  418 

P.  L.  562,  Sec.  2  420 

July    10    P.  L.  639,  Sec.  2 334 

P.  L.  639,  Sec.  3  335 

P.  L.  639,  Sec.  4  336 

July    ii    P.L.655 68 

P.  L.  657 68 

July    18    P.L.669 68 

1903    Mar.     5    P.  L-  10,  Sec.  I  506 

P.  L.  10,  Sec.  2 5C7 

Mar.  26    P.  L.  70,  Sec.  i  336 

April    3    P.  L.  151,  Sec.  i  &  2  25 

April  22    P.  L.  241 195 

1905    Feb.    28    P.  L.26 285 

Mar.    16    P.  L.  42,  Sec.  i  535 

Mar.   30    P.  L-  77,  Sec.  i,  2,  3  617 

Mar.   31     P.  L.  91  598 

April    6    P.  L.  114,  Sec.  i  523 

April  14    P.  L.  153,  Sec.  i,  2,  3  376-8 

April  18    P.  L.  208 81 

April  20    P.  L- 239 445 

April  22    P.  L.  297,  Sec.  i  338 

1907    Mar.     5    P.  L.  6 240 

Mar.   22    P.  L.  26 68 

P.  1-29 471 

Mar.  23    P.  L.  201 558 

Mar.   25    P.  L.  260 68 

Mar.  28    P.  L.  271,  Sec.  1,2  531 

P.  L.  292,  Sec  6 176 

June     i    P.  L.  364 16, 21 

P.  L.  384,  Sec.  1-4    582 

1909    April     i     P.  L.  79,  Sec.  I   277 

P-  L.  87 294, 296-7 

P.  L.  95 550 

AprU  27    P.  L.  202,  Sec.  1,2  561-2 

May      3    P.  L.  386,  Sec.  i   418,  419,421 

P.  L.  386,  Sec  2  423 

P.  L.  386,  Sec.  3  424 

P.  L.  386,  Sec.  4  425 


ACTS  REFERRED  TO  685 

1909    May     3    P.  L.  386,  Sec.  5  418 

P.  L.  391,  Sec.  i  545-7 

May     6    P.  L.  459 403 

May     8    P.  L.  481,  Sec.  i   16,21 

1911     April  21     P.  L.  79,  Sec.  i   246 

P.  L.  79,  Sec.  2  247 

P.  L.  79,  Sec.  3  249 

April  27     P.  L.  87,  Sec.  I   256 

P.  L.  101,  Sec.  5  76 

June     i    P.  L.  539,  Sec.  3  338 

P.  L.  539,  Sec.  4  338-9 

June     7    P.  L.  701,  Sec.  i  222 

June     8    P.  L.  709,  Sec.  i   154 

June     9    P.  L.  724,  Sec.  1,2  451 

P.  L.  724,  Sec.  3  452 

P.  L.  744 608 

June   10    P.  L.  870,  Sec.  i   556 

P.  L.  870,  Sec.  2, 3  557 

P.  L.  874 38 

P.  L.  874,  Sec.  i  455,496 

P.  L.  874,  Sec.  2  496 

June   13    P.  L.  890 592 

1913    April  15    P.  L.  72 240 

May   23    P.  L.  304 30, 33 

P.  L.  344 402 

P.  L.  345  170 

May   28    P.  L.  369,  Sec.  i  366 

P.  L.  369,  Sec.  2  368 

P.  L.  369,  Sec.  3  369 

P.  L.  369,  Sec.  4  370 

P.  L.  369,  Sec.  5  371 

P.  L.  369,  Sec.  6  372 

P.  L.  369,  Sec.  7  373 

P.  L.  373,  Sec.  1,2  367 

P.  L.  373,  Sec.  3  368 

P.  L.  373,  Sec.  4  369 

P.  L.  373,  Sec.  5  37O 

P.  L.  373,  Sec.  9  366 

June   12    P.  L.  470 451 

July    19    P.  L.  844,  Sec.  1-5  81-4 

July    21     P.  L.  871  452 

P.  L.  872,  Sec.  i   299 

P.  L.  872,  Sec.  2  300 

P.  L.  875  296-7 

P.  L.  877 403-6 

July    22    P.  L.  908,  Sec.  i  498 

P.  L.  908,  Sec.  2  500 

1915    Mar.   31    P.  L.  41  «7 

April    2     P.  L.  43  593 

April  10    P.  L.  112  452 


686  ACTS  REFERRED  TO 

1915    April  15    P.  L.  124  224-5 

April  21     P.  L.  145   225 

P.  L.  156,  Sec.  i-s  77-80 

April  28    P.  L.  198 259 

May     3    P.  L,.  218,  Sec.  i  350 

P.  L.  218,  Sec.  2,3,4 389 

P.  L.  234  "    306-7 

May     6    P.  L.  265,  Sec.  i  554 

P.  L.  267  402 

P.  L.  269,  Sec.  i   3 

May    14    P.  L.  475 418,424 

May    28    P.  L.  580 338 

P.  L.  635,  Sec.  i  204 

June     i     P.  L.  681,  Sec.  1,2  410 

P.  L.  681,  Sec.  3-6  4n 

P.L.689 378 

June    n     P.  L.  945 373-4 


(*So  printed  in  the  Act  but  evidently  an  error  for  April  13.) 


CITATIONS 

Orphans'  Court  Partition  Act  of  1917,  P.  L.  337. 

Section    Section 
of  act.     herein.  Citation. 

1  (a)          2        Gilpin  v.  Brown,  268  Pa.  398,  112  Atl.  124. 

Stockdale's  Est.,  29  Dist.  1013. 

2  4        Herdle's  Est.,  29  Dist.  817. 

Klump's  Est.,  50  Pa.  C.  C.  99,  29  Dist.  1004. 
Gilpin  v.  Brown,  268  Pa.  398,  112  Atl.  124. 
Dodd's  Est,  I  Wash.  236. 
Battersby's  Est.,  29  Dist.  221. 
Dodd's  Est.,  i  Wash.  236. 
Battersby's  Est.,  29  Dist.  221. 
Fogelsanger's  Est.,  267  Pa.  321,  no  Atl.  172. 
Whitaker's  Est,  30  Dist  814,  35  York  99. 
Dodd's  Est.,  i  Wash.  236. 
Klase's  Est.,   18  North  46. 
Dodd's  Est.,  i  Wash.  236. 

Orphans'  Court  Act  of  1917,  P.  L.  363. 
9  (i)        101        Owen's  Est,  28  Dist  667. 

Wykoff  v.  Manzer,  22  Lack.  308. 
(j)        102        Stapler  v.  Atkinson,  27  Dist.  995. 
(1)        104        Hagerman's  Est,  47  Pa.  C.  C,  498,  28  Dist  384. 

Wyant's  Est.,  33  York  208. 
10  107        Hayden's  Est,  28  Dist  39. 

15  H3        Storer's  Est.,  28  Dist  215. 

17  (a)       116        Seidman's    Est,   20   Lack.    176. 

20  (b)   i  152        Di  Battista's  Est,  20  Dist  988. 

2  153        Bleakley's  Est,  28  Dist.  289,  15  Del.  199,  37  Lane.  29. 

3  154        Bleakley's  Est.,  28  Dist.  289,  15  Del.  199,  37  Lane.  29. 

21  (a)       159        Byerly's  Est.,  258  Pa.  410,  102  Atl.  143. 

Klagholz's  Est.,  27  Dist  95. 
(b)      160       Wand's  Est,  50  Pa.  C.  C.  516. 

Revised  Price  Act  of  1917,  P.  L.  388. 

1  168        Behringer's  Est,  265  Pa.  ill,  108  Atl.  414. 

Garrison's  Est,  65  P.  L.  J.  778. 

Jefferies'  Est.,  37  Lane.  435. 

Jones'  Est.,  47  Pa.  C.  C.  463,  28  Dist.  282. 

Maule's  Est,  37  Lane.  231. 

St.  Joseph's  Church,  49  Pa.  C.  C.  315,  16  Sch.  327. 
(a)       169        Janney's  Est.,  27  Dist.  709. 
(f)       174        Scott's  Est.,  49  Pa.  C.  C.  295. 

2  (a)       176        Act  of  May  2,  1919,  P.  L.  in. 

Behringer's  Est.,  265  Pa.  in,  108  Atl.  414. 
Frey's  Est.,  50  Pa.  C.  C.  468. 
Myers  v.  Crick,  271  Pa.  399. 
$87 


688  CITATION  OF  CASES 

Section  Section 

of  act.  herein.  Citation. 

St.  Joseph's  Church,  49  Pa.  C.  C.  315,  16  Sch.  327. 

2  (b)  177        Patterson  v.  Reed,  260  Pa.  219,  103  Atl.  735. 

(d)  179        Behringer's  Est.,  265  Pa.  in,  108  Atl.  414. 

(!)  181   '    Behringer's  Est.,  265  Pa.  in,  108  Atl.  414. 

4  183        Act  of  July  ii,  1917,  P.  L.  790. 

8  188        Myers  v.   Crick,  271   Pa.  399. 

12  191        Act  of  July  II,  1917,  P.  L.  790. 

13  192        St  Joseph's  Church,  49  Pa.  C.  C.  315,  16  Sch.  327. 

20  (b)      206       Mauch's  Est.,  47  Pa.  C.  C.  490,  67  P.  L.  J.  308,  16  North. 
405,  33  York.  45. 

Wills  Act  of  1917,  P.  L.  403. 

2  215        Hodgson's;  Est,  270  Pa.  210,  112  Atl.  778. 

Kris'   Est.,   30   Dist.    166. 

Perry's  Est.  67  P.  L.  J.  216. 

Seiter's  Est,  265  Pa.  202,  108  Atl.  614. 

Weber's  Est,  12  Berks  12,  aff'd  in  268  Pa.  7,  no  Atl.  785. 

Wilson  v.  Cook,  49  Pa.  C.  C.  16. 

3  216        Perry's  Est.,  67  P.  L.  J.  216. 

Kris'  Est,  30  Dist.  166. 
3  221        Henninger's  Est,  30  Dist  413. 

6  222        Channon's  Est,  28  Dist.  479,  aff'd   in  266  Pa.  417,   109 

Atl.  756. 

Eby's  Est.,  No.  2,  37  Lane.  329,  30  Dist.  338. 

McNulty's  Est.,  29  Dist.  709. 

8  (a)      224       Boyd's  Est,  50  Pa.  C.  C.  163,  10  West.  47,  aff'd  in  270 

Pa.  504. 

McLain's  Est.,  i  Wash.  220.  ; 

(b)      225        Act  of  June  12,  1919,  P.  L.  443. 

Boyd's  Est,  50  Pa.  C.  C.  163,  10  West.  47,  aff'd  in  270 

Pa.  504. 
McLain's  Est.,  i  Wash.  220. 

9  227        Annear's  Est.,  29  Dist.  44. 

11  229        Duffy's  Est,  49  Pa.  C.  C.  30,  29  Dist.  379. 

Spark's  Est.,  30  Dist.  85. 

12  230        Rosenfeld  v.  Wahal,  48  Pa.  C.  C.  362. 

14  232        English's  Est  270  Pa.  i,  112  Atl.  913. 

Segelbaum's  Est.,  24  Dauphin  274. 

15  (a)       233        Gamier  v.  Gamier,  16  North.  205. 

Hill's  Est,  30  Dist.  477,  69  P.  L.  J.  177,  348. 

Moore's  Est,  30  Dist.  152,  68  P.  L.  J.  670,  15  Del.  367. 

Wagenhorst's  Est,  12  Berks  89. 

(b)  234        Fetherolf's  Est,  No.  2,  29  Dist.  479,  12  Berks  62. 

Gamier  v.  Gamier,  16  North.  205. 

Moore's  Est,  30  Dist  152,  68  P.  L.  J.  670,  i$  Del.  367. 

Stock's  Est.,  49  Pa.  C.  C.  203,  29  Dist.  376. 

(c)  235        Gamier  v.  Gamier,  16  North.  205. 

Gregg's  Est.,  266  Pa.  189,  109  Atl.  177. 
Jackson's  Est,  28  Dist  943,  68  P.  L.  J.  613. 


CITATION  OF  CASES  689 

Section    Section 
of  act.     herein.  Citation. 

15  (c)       235        Kane's  Est.,  69  P.  L.  J.  820. 

McNulty's  Est,  29)  Dist.  709. 

16  (a)      236       Boyd's  Est,  50  Pa.  C.  C.  163,  10  West.  47,  aff'd  in  270 

Pa.  504. 

Moore's  Est.,  30  Dist.,  152,  68  P.  L.  J.  670,  15  Del.  367. 
(b)      237        Boyd's  Est,  50  Pa.  C.  C.  163,  10  West.  47,  aff'd  in  270 

Pa.  504. 

Hill's  Est,  30!  Dist.  477,  69  P.  L.  J.  177,  348. 
Moore's  Est.,  30  Dist.  152,  68  P.  L.  J.  670,  15  Del.  367. 

17  238        Greave's  Est.,  29  Dist  577. 

Gruner's  Est,  29  Dist  1095,  49  Pa.  C.  C.  642. 
Mulgrew's  Est,  69  P.  L.  J.  169. 

20  (a)      241        Seiter's  Est.,  265  Pa.  202,  108  Atl.  614. 
(b)      242        Seiter's  Est.,  265  Pa.  202,  108  Atl.  614. 

21  243        Act  of  May  20,  1921,   (P.  L.  937). 

Boyd's  Est,  50  Pa.  C.  C.  163,  10  West.  47,  aff'd  in  270 

Pa.   504. 

Greave's  Est.,  29  Dist.  577. 
Pfanenschmidt's  Est.,  35   Montg.   135. 
Shestack's  Est.,  267  Pa.  115,  no  Atl.  166. 
Shoch's  Est.,  29  Dist.  1163,  aff'd  in  271  Pa.  158. 
23  (a)      245        Collom's  Est.,  47  Pa.  C.  C.  434,  28  Dist  503. 
Dodd's  Est.,  i  Wash.  236. 
Flower's  Est.,  30  Dist.  967. 
Langerwisch's  Est.,  47  Pa.  C.  C.  121,  28  Dist  470,  8  Leh. 

147,  aff'd  in  267  Pa.  319,  no  Atl.  165. 
Schreckengost's  Est.,  77  Super.  235. 
Young's  Est,  i  Wash.  250. 

(b)  246        Lehman's  Est.,  33  York  113,  8  Leh.  315. 

Flower's   Est.,   30   Dist   967. 
Young's  Est.,  i  Wash.  250. 

(c)  247        Flower's    Est,   30   Dist   967. 

(d)  248        Haack's  Est,  30  Dist  669. 

Flower's  Est.,  30  Dist.  967. 
26  252        Gamier  v.  Gamier,  16  North.  205. 

Mulligan's  Est.,  47  Pa.  C.  C.  546,  28  Dist.  309. 
Perry's  Est,  67  P.  L.  J.,  216. 
Young's  Est.,  i  Wash.  250. 

Register  of  Wills  Act  of  1917,  P.  L.  415. 

3  262       Cook's  Est.,  47  Pa.  C.  C.  84,  27  Dist.  1006. 

4  263        Cook's  Est.,  47  Pa.  C.  C.  84,  27  Dist.  1006. 

Winsor's  Estn  Pa.  C.  C.  105,  27  Dist.  1010,  32  York  131, 
aff'd  in  264  Pa.  552,  107  Atl.  888. 

5  264       Burtop's  Est,  66  P.  L.  J.  765. 

Sharpless'  Est,  i$  Del.  16,  20  Luz.  161,  28  Dist.  746. 
Wehrj^s  Est.,  27  Pa.  C.  C.  486,  15  Sch.  262,  33  York  68. 

8  267        Fleming's  Est.,  265  Pa.  399,  109  Atl.  265. 

9  268       Fleming's)  Est,  265  Pa.  399,  109  Atl.  265. 
44 


690  CITATION  OF  CASES 

Section    Section 

of  act     herein.  Citation. 

16  (a)      276       Burtop's  Est,  66  P.  L.  J.  765. 

Fonda's  Est,  5  Northumb.  249. 

Henry's  Est,  30  Dist  945,  69  P.  L.  J.  737,  35  York  122. 

18  279       Wand's  Est,  50  Pa.  C  C.  516. 

19  280       Cross'  Est,  i  Erie  83. 

20  (a)      281        Alexander's  Est.,  28  Dist  993,  33  York  I. 
(d)      284        Alexander's  Est,  28  Dist  993,  33  York  I. 

21  (a)       285        Burtop's  Est,  66  P.  L.  J.  765. 

Cook's  Est,  47  Pa.  C.  C.  84,  27  Dist  1006. 

Winsor's  Est,  47  Pa.  C.  C.  105,  27  Dist.  1010,  32  York 

131,  affd  in  264  Pa.  552,  107  Atl.  886. 
24  289        Act  of  April  16,  1921,  P.  L.  94. 

Intestate  Act  of  1917,  P.  L.  429. 
Gen.         292       Miles'  Est,  S.  C.  Oct  1921,  No.  61-2. 

1  (a)      294        Caldwell  v.  Caldwell,  70  Super.  332. 
(b)      295        Comm.  v.  Rife,  50  Pa.  C.  C.  22. 

2  (a)      296       Act  of  July  11,  1917,  P.  L.  755- 

Brady's  Est,  29  Dist.  24. 

Carrell's  Est,  264  Pa.  140. 

Collom's  Est,  47  Pa.  C.  C  434,  28  Dist  503. 

Desmond's  Est,  28  Dist  231,  36  Lane.  217,  8  Leh.  255. 

Dodd's  Est,  i  Wash.  236. 

Langerwisch's  Est.,  47  Pa.  C.  C.  121,  28  Dist  470,  8  Leh. 

147,  aff'd  in  267  Pa.  319,  no  Atl.  165. 
McDonald's  Est,  49  Pa.  C.  C.  423,  I  Wash,  10,  rev'd  in 

268  Pa.  486,  112  Atl.  98. 
McNulty*s  Est,  29  Dist  709. 
Nolan's  Est,  68  P.  L.  J.  588,  2  Erie  in,  21  Lack.  239, 

9  Leh.  57. 

Pfanenschmidfs  Est,  35  Montg.  135. 
Shestack's  Est,  267  Pa.  115,  no  Atl.  166. 
Shoch's  Est.,  No.  i,  271  Pa.  158,  afFg  29  Dist  1163. 
Troutman's  Est,  30  Dist.  708. 
Wandall's  Est,  29  Dist  1132. 

(b)      297       Desmond's  Est,  28  Dist  231,  36  Lane.  218,  8  Leh.  255. 
Hilton's  Est,  i  Wash.  125. 
Troutman's  Est.,  30  Dist  708. 
(d)      299        Troutman's  Est.,  30  Dist  708. 
(f)       301        Fretz's  Est,  28  Dist.  645. 

3  304        Stockdale's  Est,  29  Dist  1013. 

5  306        Phillips'  Est,  271  Pa.  129. 

6  307        Cannavan's  Est,  69  P.  L.  J.  84. 

Lawton'3  Est,  266  Pa.  558,  106  Atl.  609. 

Post's  Est,  27  Dist  748,  36  Lane.  8,  66  P.  L.  J.  761,  8  Leh. 

i1 5.  33  York  II. 

Schreckengost's  Est.,  77  Super.  235. 
8  316        Manzke's  Est.,  13  Berks  152. 


CITATION  OF  CASES 


691 


Section    Section 

of  act.     herein.  Citation. 

0(d)       321        Wightman's    Est,   49   Pa.    C.    C.    614,   30   Dist.   885,   68 
P.  L.  J.  833. 

10  322        Brodie's  Est.,  30  Dist.  654. 

Miles'  Est.,  S.  C.  Oct.  Term  1921,  No.  61-2. 
Wightman's   Est.,   49   Pa.    C.   C.   614,    30   Dist.   885,   68 
P.  L.  J.  833. 

11  323        Brodie's  Est.,  30  Dist.  654. 

Miles'  Est,  S.  C.  Oct.  Term  1921,  No.  61-2. 
Wightman's   Est.,   49   Pa.    C.    C.   614,    30   Dist.   885,   68 
P.  L.  J.  833. 

12  324        Brodie's  Est,  30  Dist  654. 

Miles'  Est.,  S.  C.  Oct.  Term  1921,  No.  61-2. 

13  332        Miller  v.  Brown,  49  Pa.  C.  C.  332. 

Comm.  v.  Gross,  35  York  93. 
16  (a)      338        Moore's  Est.,  30  Dist  152,  68  P.  L.  J.  670,  15  Del.  367. 

(b)  339        Moore's  Est.,  30  Dist.  152,  68  P.  L.  J.  670,  15  Del.  367. 

18  342        Maurer  v.  Straub,  16  Sch.  174. 

Wightman's    Est,   49    Pa.    C.    C.   614,   30   Dist.   885,   68 
P.  L.  J.  833. 

19  343        Brodie's  Est,  30  Dist.  654. 

Miles'  Est,  S.  C.  Oct.  Term  1921,  No.  61-2. 
Wightman's   Est,   49   Pa.    C.    C.    614,   30   Dist   885,   68 

P.  L.  J.  833. 
25  349        Foreign  Intestate's  Est.,  68|  P.  L.  J.  I. 

27  351        Hilton's  Est,  i  Wash.  125. 

28  352       Hilton's  Est,  i  Wash.  125. 

Fiduciaries  Act  of  1917,  P.  L.  447. 
General    353        Huber's  Est.,  27  Dist.  25. 

2  (a)       355        Blessing's  Est.,  29  Dist.  3,  68  P.  L.  J.  78,  15  Del.  224. 

aff'd  in  267  Pa.  380. 

(c)  357       Boyko's  Est.,  49  Pa.  C.  C.  495,  21  Lack.  161. 

Hanshaw's  Est,  22  Dauphin  178. 

Sharpless'  Est,  28  Dist.  746,  15  Del.  16,  20  Luz.  161. 

Shontz's  Est.,  71  Super.  295. 

(d)  358       Sharpless'  Est,  28  Dist.  746,  15  Del.  16,  20  Luz.  161. 

Act  of  March  24,  1921,  P.  L.  51. 

3  (d)       362        Kiefer  v.  Jones,  50  Pa.  C.  C.  269  (s.  c.  sub  nom.  Daniel 

v.  Jones),  30  Dist  633. 

4  364        Henry's  Est.,  30  Dist.  945,  69  P.  L.  J.  737,  35  York  122. 

6  (a)       366        Twining's  Est,  37  Montg.  116. 

(h)      373        Howe's  Est,  49  Pa.  C.  C.  261,  29  Dist.  436,  68  P.  L.  J. 
301,  34  York  7. 

7  (a)       380        Henry's  Est,  30  Dist.  945,  69  P.  L.  J.  737,  35  York  122. 

8  (a)       382        Cooper's  Est,  29  Dist.  230,  67  P.  L.  J.  17,  20  Lack.  46, 

36  Lane.  266,  32  York  144. 

Henry's  Est.,  30  Dist.  945,  69  P.  L.  J.  737,  35  York  122. 
(b)       383        Kiefer  v.  Jones,  50  Pa.  C.  C.  269  (s.  c.  sub  nom.  Daniel 
v.  Jones),  30  Dist.  633. 


692  CITATION  OF  CASES 

Section  Section 

of  act  herein.  Citation. 

8  (d)  385       Henry's  Est.,  30  Dist.  945,  69  P.  L.  J.  737,  35  York  122. 

10  391        Cooper's  Est,  29  Dist  230,  67  P.  L.  J.  17,  20  Lack.  46, 

36  Lane.  266,  32  York  144. 

Cotter's  Est,  47  Pa.  C.  C.  76,  27  Dist  1023,  67  P.  L.  J.  19. 
Hayden's  Est,  28  Dist  39, 

11  (a)      392        Brown's  Est,  i  Wash.  149. 

12  403        Becker's  Est,  33  York  139. 

Curtis  v.  Yost,  2  Erie  6. 

Desmond's  Est,  28  Dist  231,  36  Lane.  217,  8  Leh.  255. 

Hildebrand's  Est,  262  Pa,  112,  104  Atl.  866,  aflTd  35  Lane. 

73,  66  P.  L.  J.  176,  31  York  184. 
Hornberger's  Est,  30  Dist  907,  13  Berks  183. 
Huber's  Est.,  27  Dist  25. 
Posfs  Est,  27  Dist  748,  66  P.  L.  J.  761,  19  Lack.  62,  35 

Lane.  226,  36  Lane.  8,  8  Leh.  115,  33  York  n. 
Wenger's  Est,  27  Dist  949,  35  Lane.  196. 
Zerbe's  Est,   13  Berks  277. 

13  (a)      415        Cochran's  Est,  28  Dist  654. 

Miller's  Est,  264  Pa.  310,   107  Atl.  614. 
Smith's  Est,  49  Pa.  C.  C.  453,  29  Dist  917. 
Tschopp's  Est,  27  Dist  103,  affd  in  71  Super.  434. 

14  417       Bowman's  Est,  47  Pa.  C.  C.  405,  28  Dist  766,  67  P.  L.  J. 

321,  36  Lane.  121,  33  York  2. 
Cullen's  Est,  16  Sch.  278. 
Kearney's  Est,  30  Dist  75. 
Miller's  Est.,  264  Pa.  310,  107  Atl.  684. 
Reel's  Est,  65  P.  L.  J.  689,  affd  in  263  Pa.  248,   106 

Atl.  227. 

15  (a)      418       Act  of  June  7,  1919,  P.  L.  412. 

Cassady's  Est,  28  Dist  37,  32  York  155. 

Gibb's  Est,  30  Dist  128,  34  York  29. 

Hoch's  Est,  48  Pa.  C.  C.  149,  28  Dist  416,  68  P.  L.  J. 

207,  37  Lane.  98. 
Kearney's  Est.,  30  Dist  75. 
Kirk  v.  VanHorn,  265  Pa.  549,  109  AtL  522. 
Myers  v.  Lohr,  66  P.  L.  J.  665,  19  Lack.  287,  8  Leh.  119, 

affd  in  72  Super.  472. 
Olson's  Est,  65  P.  L.  J.  571,  34  Lane  397. 
Scherrer's  Est,  7  West  109. 
Smith's  Est,  29  Dist  917,  49  Pa.  C.  C.  453. 

(b)  419        Act  of  May  2,  1919,  P.  L.  104. 

Kearney's  Est.,  30  Dist  75. 

(c)  420        Cassady's  Est,  28  Dist  37.  32  York  155. 

Gibbs'  Est.,  30  Dist  128,  34  York  29. 

Olson's  Est,  65  P.  L.  J.  57i,  34  Lane.  307. 

Myers  v.  Lohr,  66  P.  L.  J.  665,  19  Lack.  287,  8  Leh.  119, 

affd  in  72  Super.  472. 
Scherrer's  Est,  7  West  109. 


CITATION  OF  CASES  693 

Section    Section 
of  act.     herein.  Citation. 

15  (d)       421        Myers  v.  Lohr,  66  P.  L.  J.  665,  19  Lack.  287,  8  Leh.  119, 

afFd  in  72  Super.  472. 
(j)       427        Catafesta's  Est.,  28  Dist.  304. 

16  430        Young's  Est.,  No.  i,  28  Dist  814,  67  P.  L.  J.  315. 
(c)       434        Spinelli  v.  Costello,  30  Dist.  411. 

(f)  437        Randall's  Est.,  269  Pa.  530,  112  Atl.  780. 

(g)  438        Bowman's  Est.,  47  Pa.  C.  C.  405,  67  P.  L.  J.  321,  28  Dist 

766,  36  Lane.  121,  33  York  2. 
(m)     452       Mauch's  Est,  47  Pa.  C.  C.  490,  67  P.  L.  J.  308,  16  North. 

405,  33  York  45- 
18  (a)      459        Wykoff  v.  Manzer,  22  Lack.  308. 

(b)  460        Wykoff  v.  Manzer,  22  Lack.  308. 

(c)  461        Wykoff  v.  Manzer,  22  Lack.  308. 
21  467        Greaves'  Est.,  29  Dist.  577. 

Sterrett's  Est,  29  Dist.  147. 

Wagner's  Est,  30  Dist.  435,  13  Berks  6. 

23  469        Conner's  Est.,  29  Dist  636. 

Dale's  Est,  29  Dist.  265. 

Loewer's  Est,  263  Pa.  517,  106  Atl.  789,  rev'g  27  Dist  753. 

Ranck's  Est.,  27  Dist.  792,  35  Lane.  205. 

24  470        Foe's  Est.,  47  Pa.  C.  C.  590,  29  Dist.  857,  68  P.  L.  J.  635, 

15  Del.  381. 

25  471        Johnston's  Est.,  264  Pa.  71,  107  Atl.  335. 

26  (a)       474        Channon's  Est.,  47  Pa.  C.  C.  637,  28  Dist.  479,  aff'd  in 

266  Pa.  417,  109  Atl.  756. 
Cullen's  Est.,  16  Sch.  278. 

27  (b)   i  483        Harbold's  Est.,  34  York  149. 

(c)  487        Poe's  Est,  47  Pa.  C.  C.  590,  29  Dist  857,  68  P.  L.  J.  635, 

15  Del.  381. 

(d)  488        Poe's  Est.,  47  Pa.  C.  C.  590,  29  Dist  857,  68  P.  L.  J.  635, 

15  Del.  381. 

28  (a)      491        Barnwell's  Est.,  49  Pa.  C.  C.   188,  29  Dist  317,  aff'd  in 

269  Pa.  443. 

Eisenbise's  Extr.  v.  Lebo,   13  Berks  308. 
Kolb  v.  O'Hay,  28  Dist.  194,  16  North.  289. 
(c)       493        Faus'  Est.,  50  Pa.  C.  C.  342. 

30  496        Davidson  v.  Bright,  267  Pa.  580,  no  Atl.  301. 

31  497        Archambault's  Est.,  29  Dist.  77. 

32  (a)      498        Bennett's  Est.,  67  P.  L.  J.  363,  20  Lack.  142. 

33  (f)       5o6        Ruch's  Est.,  37  Lane.  69. 

35a-g      512-8      Act  of  March  30,   1921,  P.  L.  55. 

37  524        Harris  v.  Blatt,  28  Dist  11,  66  P.  L.  J.  646,  35  Lane.  361, 

8  Leh.  80,  32  York  101. 

38  525        Young's  Est.,  30  Dist  182. 

41  (a)   i  528        In  re  Trust  Funds,  68  P.  L.  J.  608  (s.  c.  sub.  nom.  Hotel 

Mortgage),  50  Pa.  C.  C.  82. 
Legal  Investments,  69  P.  L.  J.   777. 


694  CITATION  OF  CASES 

Section  Section 

of  act  herein.  Citation. 

41  (a)2  529        Legal  Investments,  69  P.  L.  J.  777. 

(b)  531        Act  off  May  2,  1919,  P.  L.  114. 

45  538        Merchant's  Est.,  30  Dist  92. 

46  (a)      539        Amodei's  Est,  27  Dist  373. 

Cooper's  Est,  29  Dist  320,  67  P.  L.  J.  17,  20  Lack.  46, 

36  Lane.  266,  32  York  145. 
Hayden's  Est,  28  Dist  39. 
Laverty's  Est,  50  Pa.  C.  C.  259,  30  Dist  507,  24  Dauph. 

107. 

(c)  541         Morthland's  Est,  32  York  137. 

(d)  542        Hayden's  Est,  28  Dist  39. 
(g)      545       Engle  v.  Eagle,  21  Lux.  277. 

Girard's  Est,  48  Pa.  C.  C.  608,  29  Dist  62. 

Noble's  Est,  27  Dist  336,  66  P.  L.  J.  414,  35  Lane.  369, 

19  Lack.  341. 
(h)      546       Noble's  Est,  27  Dist.  336,  66  P.  L.  J.  414,  35  Lane.  369, 

19  Lack.  341. 

47  (a)      548       Cooper's  Est,  29  Dist  230,  67  P.  L.  J.  17,  20  Lack.  46, 

36  Lane.  266,  32  York  144. 

48  551        Beard's  Est,  34  York  190. 

Bender's  Est,  33  York  125. 

Graham's  Est,  48  Pa.  C.  C.  371,  28  Dist  1023. 

Riser's  Est,  35  Montg.  169. 

Troutman's  Est,  270  Pa.  310. 

49  (a)      552        Cooper's  Est,  29  Dist.  230,  67  P.  L.  J.  17,  20  Lack.  46, 

36  Lane.  266,  32  York  144. 
Laverty's  Est,  50  Pa.  C.  C.  259,  30  Dist  507,  24  Dauphin 

107. 
(b)      553        Cooper's  Est.,  29  Dist  230,  67  P.  L.  J.  17,  20  Lack.  46, 

36  Lane.  266,  32  York  144. 
Cotter's  Est,  47  Pa.  C.  C.  76,  27  Dist  1023,  67  P.  L.  J.  19. 

(d)  555        Cooper's  Est,  29  Dist  230,  67  P.  L.  J.  17,  20  Lack.  46, 

36  Lane.  266,  32  York  144. 
Feigley's  Est,  35  York  17. 

(e)  I  556        Evans'  Est,  50  Pa.  C.  C.  241,  30  Dist  253. 

Shaw's  Est,  65  P.  L.  J.  830. 

Skeer's  Est,  49  Pa.  C.  C.  535,  30  Dist  542,  17  North.  302. 

(f)  558        Act  of  March  26,  1919,  P.  L.  22. 
53  (a)       565        Buch's  Est,  35  Lane.  41. 

Kelly's  Est,  28  Dist  87. 
Miller's  Est,  264  Pa.  310,  107  Atl.  684. 
I  566        Buch's  Est,  35  Lane  41. 
Kelly's  Est,  28  Dist  87. 
Miller's  Est,  264  Pa.  310,  107  Atl.  684. 

4  569        Kelly's  Est,  28  Dist  87. 

5  570       Cook's  Est.,  48  Pa.  C.  C.  599,  29  Dist  909. 

6  571        Kelly's  Est,  28  Dist.  87. 
8  573        Kelly's  Est,  28  Dist  87. 

Miller's  Est.,  264  Pa.  310,  107  Atl.  684. 


CITATION  OF  CASES  695 

Section  Section 

of  act.  herein.  Citation. 

54  (a)  579        Buch's  Est,  35  Lane.  41. 

56  (a)  584       Barnwell's  Est.,  49  Pa.  C.  C.  188,  29  Dist.  317,  aff'd  in 

269  Pa.  443. 

(b)  585        Kershaw's  Est.,  27  Dist.  659. 

(d)  587       Lewis'  Est,  30  Dist.  391. 

58  (a)  590       Jones'  Est,  47  Pa.  C.  C.  463,  28  Dist  283. 

(b)  591        Jones'  Est,  47  Pa.  C.  C.  463,  28  Dist.  282. 

(c)  592        Jones'  Est.,  47  Pa.  C.  C.  463,  28  Dist.  282. 

(d)  593       Jones'  Est.,  47  Pa.  C.  C.  463,  28  Dist.  282. 

(f)  595        Foreign  Intestates'  Est,  68  P.  L.  J.  I. 

Jones'  Est.,  47  Pa.  C.  C.  463,  28  Dist.  282. 
Moss'  Est,  29  Dist  235. 

(g)  i  596        Foreign  Intestates'  Est,  68  P.  L.  J.  I. 

Jones'  Est,  47  Pa.  C.  C.  463,  28  Dist  282. 
2  597        Foreign  Intestates'  Est.,  68  P.  L.  J.  I. 

Jones'  Est.,  47  Pa.  C.  C.  463,  28  Dist  282. 
(h)      598        Foreign  Intestates'  Est,  68  P.  L.  J.  x. 
Dixon's  Est.,  30  Dist  463. 

59  (a)      599       Crampton's  Est.,  46  Pa.  C.  C.  273,  26  Dist.  1060,  35  Lane. 

246. 

Dolan  v.  Pitts.  Coal  Co.,  27  Dist.  877,  66  P.  L.  J.  241. 

Jacoby's  Est.,  47  Pa.  C.  C.  183,  28  Dist  7. 

(b)      600       Butcher's  Est.,  35  Montg.  162,  aff'd  in  266  Pa.  479,  109, 
All.  683. 

Spencer's  Est,  itil  Berks  171. 
(d)      602        Dailey's  Est.,  27  Dist.  464,  65  P.  L.  J.  796,  31  York  132. 

Storer's  Est,  28  Dist.  2*5. 
(g)      605        Cook's  Est,  48  Pa.  C.  C.  599,  29  Dist.  909. 

Kerr's  Petition,  29  Dist.  909,  48  Pa.  C.  C.  599. 
(j)       608        Cook's  Est.,  48  Pa.  C.  C.  599,  29  Dist.  909. 

Kerr's  Petition,  29  Dist.  909,  48  Pa.  C.  C.  599- 
8  615        Cook's  Est,  48  Pa.  C.  C.  599,  29  Dist.  909. 

Devere's  Est.,  13  Berks  242. 

Kerr's  Petition,  29  Dist.  909,  48  Pa.  C.  C.  599. 
(k)      616       Boyd's  Est.,  270  Pa.  50. 

Act  of  July  ii,  1917,  P.  L.  790. 

1  624        Girard's  Est.,  48  Pa.  C.  C.  608,  29  Dist.  62. 

2  625        Girard's  Est.,  29  Dist.  62,  48  Pa.  C.  C.  608. 


TABLE  OF  CASES 

Alexander's  Est,  28  Dist  993,  33  York  I  281-4 

Amodei's   Est,   27  Dist.   373    539 

Annear's  Est,  29  Dist  44 227 

Archambault's  Est,  29  Dist  77 497 

Barnwell's  Est,  "49  Pa.  C  C.  188,  29  Dist  221  491,  584 

Battersby's  Est,  29  Dist  221   23,29 

Beard's  Est,  34  York  190 551 

Becker's  l£st,  33  York  139 403-4-5 

Behringer's  Est,  265  Pa.  in,  108  AtL  414 168, 176, 179,  181 

Bender's  Est,  33  York  125 551 

Bennett's  Est,  67  P.  L.  J.  363,  20  Lack.  142 498 

Bleakley's  Est,  28  Dist  290,  37  Lane.  29,  15  Del.  199 153-4 

Blessing's  Est,  29  Dist  3,  68  P.  L.  J.  78,  15  Del.  224,  affirmed 

in  267  Pa.  380 355 

Bowman's  Est,  47  Pa.  C.  C.  405,  28  Dist  766,  67  P.  L.  J.  321, 

36  Lane  121,  33  York  2 417, 438 

Boyd's  Est,  50  Pa.  C.  C.  163,  10  West  47,  affirmed  in  270  Pa. 

5<H  224-5,  236-7,  243,  616 

Boyko's  Est,  49  Pa.  C.  C.  495,  21  Lack.  161  357 

Brady's  Est,  29  Dist  24 296 

Brodie's  Est,  30  Dist  654 322-3-4,  343 

Brown's  Est,  i  Wash.  149 392 

Buch's  Est,  35  Lane  41  565-6,  568,  579 

Burtop's  Est,  66  P.  L.  J,  765  . .  % 264, 276, 285 

Butcher's  Est,  35  Montg.  162,  affirmed  in  266  Pa.  479,   109 

AtL  683 600 

Byerly's  Est,  258  Pa.  410,  102  AtL  143 159 

Caldwell  v.  Caldwell,  70  Super.  332  294 

Canavan's  Est  69,  P.  L.  J.  84 307 

Carrell's  Est,  264  Pa.  140 296 

Cassady's  Est,  28  Dist  37,  32  York  155  418,  420 

Cataf  esta's  Est.,  28  Dist  304 427 

Channon's  Est.,  28  Dist  479,  aflfd  in  266  Pa.  417,  109  AtL  756  222, 474 

Cochran's  Est,  28  Dist  654 415 

Collom's  Est,  49  Pa.  C.  C.  434,  28  Dist  503  245,  296 

Commonwealth  v.  Gross,  35  York  93  334 

Commonwealth  v.  Rife,  50  Pa.  C.  C.  22 295 

Conner's  Est,  29  Dist  636 469 

Cook's  Est,  47  Pa.  C.  C.  84,  27  Dist  1006 262-3.  285 

Cook's  Est,  48  Pa.  C.  599  (s.  c.  sub  nom.  Keif's  Petition),  29 

Dist.  909  570,  605,  608,  615 

Cooper's  Est,  29  Dist.  230,  67  P.  L.  J.  17,  20  Lack.  46,  36  Lane. 

266,  32  York  145 382,  391,  548,  552-3,  555 

Cotter's  Est,  47  Pa.  C.  C.  76,  27  Dist  1023,  67  P.  L.  J.  19. ...          39i,  553 

696 


TABLE  OF  CASES  697 

Crampton's  Est.,  46  Pa.  C.  C.  273,  26  Dist.  1060,  35  Lane.  246  599 

Cross'  Est.,  i  Erie  83  280 

Cullen's  Est.,  16  Sch.  278  417, 474 

Curtis  v.  Yost,  2  Erie  6 403 

Dailey's  Est.,  27  Dist.  484,  65  P.  L.  J.  796,  31  York  132 602 

Dale's  Est,  29  Dist.  265   469 

Daniel  v.  Jones,  30  Dist.  633,  30  Pa.  C.  C.  269 362, 383 

Davidson  v.  Bright,  267  Pa.  580,  no  Atl.  301  496 

Desmond's  Est,  28  Dist.  231,  36  Lane.  217,  8  Leh.  255 296-7, 403 

Devere's  Est,  13  Berks  242  615 

Di  Battista's  Est,  30  Dist.  988 152 

Dixon's  Est.,  30  Dist.  463  588 

Dodd's  Est.,  i  Wash.  236  21,  26, 39, 60, 245, 296 

Dolan  v.  Pittsburgh  Coal  Co.,  27  Dist  877,  66  P.  L.  J.  241  ...  599 

Duffy's  Est,  49  Pa.  C.  C.  29,  Dist.  379 229 

Eby's  Est  (No.  2),  30  Dist.  338,  37  Lane.  329 222 

Eisenbise's  Extr.  v.  Lebo,  13  Berks  308  491 

Engle  v.  Engle,  21  Luz.  277 545 

English's  Est,  270  Pa.  i,  112  Atl.  913  232 

Evans'  Est.,  50  Pa.  C.  C.  241,  30  Dist.  253  556 

Faus'  Est.,  50  Pa.  C.  C.  342 493 

Feigley's  Est.,  35  York  17  555 

Fetherolf's  Est.  (No.  2),  29  Dist  479,  12  Berks  62 234 

Fleming's  Est.,  265  Pa.  399,  109  Atl.  265  267-8 

Flower's  Est.,  30  Dist.  967   245-8 

Fogelsanger's  Est.,  267  Pa.  321,  no  Atl.  172  32 

Fonda's   Est,    5    Northumb.   249    279 

Foreign  Intestates'  Est,  68  P.  L.  J.  i  349,  595-8 

Fretz's  Est.,  28  Dist.  645  301 

Frey's  Est,  50  Pa.  C.  C.  468  176 

Gamier  v.  Gamier,  16  North.  205 233-4-5, 252 

Garrison's  Est,  65  P.  L.  J.  778 168 

Gibb's  Est.,  30  Dist  123,  34  York  29 418, 420 

Gilpin  v.  Brown,  268  Pa.  398,  112  Atl.  124 2,  14 

Girard's  Est.,  49  Pa.  C.  C.  608,  29  Dist.  62  545,  624-5 

Graham's  Est.,  48  Pa.  C.  C.  371,  28  Dist  1023 551 

Greaves'  Est,  29  Dist.  577  238, 243, 467 

Gregg's  Est.,  266  Pa.  189,  109  Atl.  177 235 

Corner's  Est.,  49  Pa.  C.  C.  642,  29  Dist.  1095 238 

Haack's  Est.,  30  Dist.  669  248 

Hagerman's  Est.,  47  Pa.  C.  C.  498,  28  Dist.  384 104 

Hanshaw's  Est.,  22  Dauphin  178  357 

Harbold's  Est,  34  York  149 483 

Harris  v.  Blatt,  28  Dist  11,  66  P.  L.  J.  648,  35  Lane.  361,  8 

Leh.  80,  32  York  101 524 

Hayden's  Est.,  28  Dist  39  107, 391,  539, 542 


698  TABLE  OF  CASES 

Henninger's  Est.,  30  Dist  413 221 

Henry's  Est.,  30  Dist.  945,  69  P.  L.  J.  737,  35  York  122 

279,    364,   380,    382,    385 

Herdle's  Est.,  29  Dist  817 4 

Hildebrand's  Est.,  262  Pa.  112,  104  Atl.  866,  affirming  66  P. 

L.  J.  176,  35  Lane.  73,  31  York  184 403 

Hill's  Est.,  30  Dist.  477,  69  P.  L.  J.  177,  348 233, 237 

Hilton's  Est.,  i  Wash.  125   297,351,352 

Riser's  Est,  35  Montg.  169 551 

Hoch's  Est,  48  Pa.  C.  C.  149,  28  Dist  416,  68  P.  L.  J.  207 

37  Lane.  98 418 

Hodgson's  Est,  270  Pa.  210,  1 12  Atl.  778 215 

Hornberger's  Est,  30  Dist  907,  13  Berks  183 403 

Hotel  Mortgage,  50  Pa.  C.  C.  82,  68  P.  L.  J.  608 528 

Howe's  Est,  49  Pa.  C.  C.  261,  29  Dist.  436,  68  P.  L.  J.  301, 

34York7 373 

Huber's  Est,  27  Dist  25  353, 403 

Jacoby's  Est.,  47  Pa.  C.  C.  183 599 

Jackson's  Est,  28  Dist  943,  68  P.  L.  J.  613 235 

Janney's  Est.,  27  Dist.  709  169 

Jefferies'  Est,  37  Lane.  435  168 

Johnston's  Est.,  264  Pa.  71,  107  Atl.  335  471 

Jones'  Est,  47  Pa.  C.  C.  463,  28  Dist.  282  168,  590, 597 

Kane's  Est,  69  P.  L.  J.  820  235 

Kearney's  Est,  30  Dist  75 417-8-9 

Kelly's  Est.,  28  Dist  87  565-6-9,  57*.  573 

Kerr's  Petition,  29  Dist  909  (s.  c.  sub  nom.  Cook's  Est),  48 

Pa.  C.  C.  599 570,  605,  608,  615 

Kershaw's  Est,  27  Dist  659 585 

Kiefer  v.  Jones,  50  Pa.  C.  C.  269,  30  Dist.  633 362,  383 

Kirk  v.  Van  Horn,  265  Pa.  549,  109  Atl.  522 418 

Klagholz's  Est,  27  Dist  95  159 

Klase's  Est,   18  North.  46   45 

Klump's  Est,  50  Pa.  C.  C.  99,  29  Dist.  1004 4 

Kolb  v.  O'Hay,  28  Dist.  194,  16  North.  289 491 

Kris'  Est,  30  Dist  166  215 

Langerwisch's  Est,  47  Pa.  C.  C.  121,  28  Dist  470,  8  Leh.  147, 

affirmed  in  267  Pa.  319,  no,  Atl.  165  245,296 

Laverty's  Est,  50  Pa.  C.  C.  259,  30  Dist.  507,  24  Dauphin  107  539,  552 

Lawton's  Est.,  266  Pa.  558,  106  Atl.  699  307 

Legal  Investments,  69  P.   L.  J.   777 528-9 

Lehman's  Est,  8  Leh.  315,  33  York  113 246 

Loewer's  Est.,  263  Pa.  517,  106  Atl.  789,  reversing  27  Dist.  753  469 

Manzke's  Est,  13  Berks  152 3*6 

Mauch's  Est,  47  Pa.  C.  C.  490,  67  P.  L.  J.  308,  16  North.  405, 

33  York  45  206, 45* 

Maule's  Est.,  37  Lane,  231  16! 


TABLE  OF  CASES  699 

Maurer  v.  Straub,  16  Sch.  174 343 

McDonald's  Est.,  268  Pa.  486,   112  Atl.  98  reversing  49  Pa. 

C.  C.  423,  i  Wash.  10 296 

McLain's  Est.,  i  Wash.  220 224-5 

McNulty's  Est.,  29  Dist.  709   232, 235, 296 

Miles'  Est.,  272  Pa.  329  292,  322-4, 343 

Miller's  Est,  264  Pa.  310,  107  Atl.  684  415,417,565-6,573 

Miller  v.  Brown,  49  Pa.  C.  C.  332  332 

Moore's  Est,  30  Dist.  152,  68  P.  L.  J.  670,  15  Del.  367.  .233,  234,  236-7,  338-9 

Morthland's  Est.,  32  York  137  539,  541 

Moss'  Est.  29  Dist.  235   595 

Mulgrew's  Est.,  69  P.  L.  J.  169 238 

Mulligan's  Est.,  47  Pa.  C.  C.  546,  28  Dist.  309 252 

Myers  v.  Crick,  271  Pa.  399  176,  181,  188 

Myers  v.  Lohr,  66  P.  L,.  J.  65,  19  Lack.  287,  8  Leh.  119,  affirmed 

in  72  Super.  472  418, 420-1 

Noble's  Est.,  27  Dist.  331,  66  P.  L.  J.  414,  35  Lane.  369 545-6-7 

Nolan's  Est,  68  P.  L.  J.  588,  2  Erie  in,  21  Lack.  239,  9  Leh.  57  296 

Olson's  Est,  65  P.  L.  J.  571,  34  Lane.  397 418-20 

Owen's  Est,  28  Dist  667 101 

Patterson  v.  Reed,  260  Pa.  321,  103  Atl.  735 177 

Perry's  Est.,  67  P.  L.  J.  216  215-6, 252 

Pfanenschmidt's  Est.,  35  Montg.  135 243,  296 

Phillips'  Est.,  271   Pa.   129   306 

Poe's  Est.,  47  Pa.  C.  C,  590,  29  Dist.  857,  68  P.  L.  J.  635,  15 

Del.  381 470, 487-8 

Post's  Est,  27  Dist.  748,  66  P.  L.  J.  761,  35  Lane.  226,  36  Lane. 

8,  8  Leh.  115,  33  York  n,  19  Lack.  62  307, 403 

Randall's  Est.,  269  Pa.  530,  1 12  Atl.  780 437 

Rauch's  Est.,  27  Dist.  792,  35  Lane.  205  469 

Reel's  Est.,  65  P.  L.  J.  689,  affirmed  in  263  Pa.  248,  106  Atl.  227  417 

Rosenfeld  v.  Wahal,  48  Pa.  C.  C.  362 230 

Ruch's  Est.,  37  Lane.  69 506 

Saint  Joseph's  L.  R.  C.  Church,  49  Pa.  C.  C.  315,  16  Sch.  327  168, 176, 192 

Scherrer's  Est.,  7  West  109 418,  420 

Schreckengost's   Est,   77    Super.   235    245, 307 

Scott's  Est.,  49  Pa.  C.  C.  295 174 

Segelbaum's  Est.,  24  Dauphin  274  232 

Seidman's  Est,  20  Lack.  176  115-6 

Seiter's  Est.,  265  Pa.  202  241-2 

Sharpless'  Est,  28  Dist.  746,  15  Del.  16,  20  Luz.  161  264,  357-8 

Shaw's  Est,  65  P.  L.  J.  830 556 

Shestack's  Est,  267  Pa.  115,  no  Atl.  166 243,  296 

Shoch's  Est,  29  Dist.  1163,  aff'd  in  271   Pa.  158 243 

Shontz's  Est,  71  Super.  295  357 

Skeer's  Est,  49  Pa.  C.  C.  535,  30  Dist  542,  17  North.  302  ....  556 


700  TABLE  OF  CASES 

Smith's  Est,  49  Pa.  C.  C.  453,  29  Dist.  917 415,  418 

Spark's   Est,   30  Dist.   815    229 

Spencer's  Est.,  10  Berks  171  600 

Spinelli  v.  Costello,  30  Dist.  411  434 

Stapler  v.  Atkinson,  27  Dist.  995 102 

Sterrett's  Est,  28  Dist  147 467 

Stock's  Est.,  49  Pa.  C.  C.  203,  29  Dist.  376 234 

Stockdale's  Est.,  29  Dist.   1013    2,  304 

Storer's  Est.,  28  Dist  215  113,  602 

Troutman's  Est,  270  Pa.  310 551 

Troutman's  Est,  30  Dist  708 296,  207,  299 

Trust  Funds,  in  re  68  P.  L.  J.  608,  50  Pa.  C.  C.  82 528 

Tschopp's  Est,  27  Dist.  103,  aff'd  in  71  Super.  434 415 

Twining's  Est,  37  Montg.  1 16 366 

Wagenhorst's  Est.,  12  Berks  89 233 

Wagner's  Est.,  30  Dist.  435,  13  Berks  6 467 

Wand's  Est,  50  Pa.  C.  C.  516 160,179 

Wandall's  Est,  29  Dist.  1 132  296 

Weber's  Est,  12  Berks  12,  affirmed  in  268  Pa.  7,  no  Atl.  785  215 

Wehry's  Est.,  47  Pa.  C.  C.  486,  15  Sch.  262,  33  York  68 264 

Wenger's  Est,  27  Dist.  949,  35  Lane.  196 403 

Whitaker's  Est,  30  Dist  814,  35  York  99 34 

Wightman's  Est,  49  Pa.  C.  C.  614,  30  Dist  885,  68  P.  L.  J. 

833    321-2-3,   342-3 

Wilson  v.  Cook,  49  Pa.  C.  C.  16 215 

Winsor's  Est,  47  Pa.  C.  C.  105,  27  Dist  1010,  32  York  131, 

affirmed  in  264  Pa.  552,  107  Atl.  888  263,  265 

Wyant's  Est.,  33  York  208 104 

Wykoff  v.  Manzer,  22  Lack.  308   101, 459-61 

Young's  Est,  i  Wash.  250  245,246,252 

Young's  Est.,  30  Dist  182 525 

Young's  Est  (No.  i),  28  Dist.  814,  67  P.  L.  J.  315  43O 

Zerbe's  Est.,  13  Berks  277 403 


INDEX 

(References  are  to  Sections.) 
A 

Abatement  and  survival  of  actions  

of  actions  by  failure  to  take  out  letters •. 

by  or  against  fiduciaries 

legacies 

sequestration    

Absconding  party,  attachment  of   

Absent  person,  title  in,  relief  under  Revised  Price  Act 

spouse,  title  in,  relief  under  Revised  Price  Act 

Abuse  of  trust,  as  ground  for  removal  of  trustee 

Accounting  to  surety  by  fiduciary,  of  investments  

Accounts,  copies  of,  duty  of  Register  of  Wills  to  furnish 

of  estate  set  apart  from  residue  to  pay  annuity  or  legacy 

of  executors,  administrators  and  trustees  

and  administrators,  jurisdiction  of  the  Orphans'  Court 

in  

etc.,  of  sale  in  partition 

guardians    

final 

trustees    

durante  absentia 

refusal  to  render  as  ground  for  removal  of  fiduciary  .... 

review  of 

Accrued  payments,  bequests  of 

Acknowledgment  and  recording  election  of  guardian  or  trustee 

of  bond  of  Register  of  Wills 

of  deeds,  etc.,  under  Revised  Price  Act 

of  deeds  or  mortgages  given  on  application  for  sale  or 

mortgage  of   real  estate  to  pay  debts 

election  to  take  under  or  against  will 

Actions,  abatement  and  survival  of   

abatement  of  by  and  against  fiduciaries 

against  non-resident  fiduciaries  

between  fiduciaries 

by  and  against  executors  and  administrators  

on  refunding  bonds,  limitation  of  

to  enforce  lien  of  decedent's  debts  

Acts  of  executor  or  administrator,  effect  on,  of  later  will 

short  title  of  Fiduciaries  Act 

Intestate  Act  

Orphans'  Court  Act  

Orphans'  Court  Partition  Act  

Register  of  Wills  Act  

701 


702  INDEX 

Revised  Price  Act  211 

Wills  Act 251 

Adjoining  owners,  squaring  and  adjusting  lines  of,  under  Re- 
vised Price  Act 171 

Adjudication,  review  of 551 

Administration,  granting  of  letters  of  355-64 

jurisdiction  o.f  the  Orphans'  Court  in  96 

Administrators,  accounts  of 539-47 

actions    by    and    against    513 

acts  of,  not  impeached  by  discovery  of  will   365 

application   of,   for   sale   or   mortgage  of   real   estate  to 

pay  debts   432 

to   stay  execution    428-9 

as  grantee  in  deed  under  contract  of  decedent  for  sale  of 

real  estate   464 

bond   of    382-7 

compensation   on    partition    46 

c.  t.  a.,  bond  of   383 

powers  and  duties  of  362 

to  sell  real  estate 494 

d.  b.  n.,  powers  of    363 

durante   minoritate,    durante   absentia  and   pendente   lite, 

powers  of    364 

effect  of  removal,  etc.,  on  sale  in  partition 43 

foreign 59O-8 

awards  to 595 

liability  of,  for  interest  536-7 

not  to  be  appointed  guardian 601 

oaths  of 380-1 

of  deceased  fiduciary,  bond  of 386 

estate  of  presumed  decedent 372 

judgment  creditor,  revival  of  judgment  against 526 

pleading  by,  effect  of 521 

removal  of,  effect  of,  on  sale  under  Revised  Price  Act  . .  196-201 

sale  in  partition  by 44 

substitution  of 512-22 

Adopted  children  included  in  legacies  or  devises  236-7 

rights  of,  under  Intestate  Act 338-9 

rights  of,  under  wills 236-7 

rights  of,  when  adopted  subsequent  to  date  of  will 243 

Advancements  as  affecting  rights  under  Intestate  Act 346 

Advertisement  in  the  Orphans'  Court • 1 10 

of  accounts  by  Register  of  Wills  542 

allowance  of  $5,000,  etc.,  under  Intestate  Act 298 

application  for  sale  or  mortgage  of  real  estate  to  pay 

debts  438 

granting  of  letters  391 

notice  of  decree  of  presumption  of  death  369 

private  sale  to  pay  debts 451 


INDEX  703 

petition  for  ancillary  letters  on  estate  of  presumed  decedent  367 

for  letters  on  estate  of  presumed  decedent 366 

to  discharge  real  estate  from  lien  of  legacies,  etc.,...  481 

private  sales  in  partition   48 

proceedings  under  Revised  Price  Act 183 

public  sales  under  Revised  Price  Act 193 

sale  in  partition 30 

widow's  or  children's  exemption 406 

Affidavit  required  of  foreign  fiduciary  to  transfer  securities..  592 

After-acquired  real  estate  to  pass  by  general  devise 208 

discovered  property,  inventory  of   399 

Alias  and  pluries  citations  in  Orphans'  Court 122 

Alleyi,  laying  out,  etc.,  under  Revised  Price  Act 174 

Allotment  in  partition,  method  of  17-20 

to  widow  in  partition  21 

Allowance  for  support  and  education  of  minor 607 

to  surviving  spouse  where  no  children  but  collaterals  under 

Intestate  Act 296-303 

Amercements,  process  to  recover  in  Orphans'  Court 146 

Ancillary  letters,  granting  of  355 

on  estate  of  presumed  decedent  367 

Annuities  payable  in  future,  discharge  of  residuary  estate  from  474-8o 
Appeal  from  decree  of  confirmation  of  appraisement  of  real 

estate  devised  at  a  valuation  504 

from  decree  of  Orphans'  Court  on  petition  of  surviving 

spouse  under  Intestate  Act  where  no  heirs 341 

from  decree  on  audit  of  guardian's  account   614 

from  decree  on  petition  for  reduction  of  fund  set  apart  out 

of   residue   for   annuity  or   legacy 479 

from  decree  on  petition  to  discharge  residue  from  legacy 

or   annuity   payable   in    future    477 

from  judgment  in  Orphans'  Court,  effect  on  transcript  in 

Common    Pleas    148 

from  order  or  decree  on  petition  to  discharge  real  estate 

from   lien   of   legacy,    etc 490 

from    Orphans'    Court    74 

by  fiduciary,  effect  of   561 

right  of  and  effect  of 163 

from  proceedings  under  Revised  Price  Act  210 

from  refusal  of  issue  from  Orphans'  Court  to  Common 

Pleas  on  distribution  of  proceeds  of  sale 161 

from   Register  of  WHlls,   bond   on    282 

costs)  on 283 

effect  of 286 

jurisdiction  of  Orphans'  Court  in  105 

on  matters  of  probate  276-7 

testimony  on   157-8 

in  partition  proceedings  63 

to  Orphans'  Court  from  Register  of  Wills 284-6 


704  INDEX 

Appearance  in  Orphans'  Court,  proceedings  on  default  in 125 

procedure  to  compel  115-25 

Application  of  provisions  as  to  Register  of  Will's  bond 259 

of  purchase  money  in  partition   38 

obligation  of  purchaser  from  executor  to  see  to 496 

obligation  to  see  to  in  sales  under  Revised  Price  Act  209 

or  mortgage  money  under  Revised  Price  Act 189 

to  Orphans'  Court  for  sale  or  mortgage  of  real  estate  to 

pay  debts 432-3 

Appointment,  defective,  relief  under  Revised  Price  Act 180 

of  appraisers   400 

for  widow's  or  children's  exemption 403 

of  real  estate  devised  at  a  valuation 502 

auditors  to  ascertain  liens,  etc.,  in  partition  43 

commissioners   in   partition    8 

to  designate  curtilage  of  building  devised 509 

Deputy   Register  of   Wills    261 

fiduciary,  effect  of  irregularity  in  on  sale  under  Re- 
vised Price  Act   201 

guardian  by  Orphans'  Court  599 

in  proceedings  under  Revised  Price  Act 183 

master  for  sale  or  mortgage  under  Revised  Price  Act  191 
on  application  for  sale  or  mortgage  of  real  estate 

to  pay  debts   436 

on    petition    for    discharge   of    residuary    estate 

from  annuities  or  legacies  payable  in  future  . .  475 

non-resident  fiduciary   588 

testamentary  guardian  by  father 224 

by  mother 225 

trustee  durante  absentia  617 

for  life  tenant 469 

for  parties  unknown,  in  partition  25 

for  parties  not  in  esse,  in  partition 60 

to  fill  vacancy  5^4-7 

to  make  sale  in  partition 34 

under  Revised  Price  Act 185 

power  of,  effect  of  general  devise  or  bequest  on 229 

Apportionment  of  income  468 

Appraisement  and  inventory 392-402 

of  allowance  of  $5,000  under  Intestate  Act 297 

goods,  etc.,  of  decedent  400 

widow  or  children's  exemption  403 

recording,  etc. 273 

right  to  take  real  estate  at 501 

Appraisers    400-2 

appointment  and  duties  where  real  estate  claimed  as  allow- 
ance of  $5,ooo,  etc.,  under  Intestate  Act  is  in  another 

county 302 

of  allowance  of  $5,000,  etc.,  under  Intestate  Act,  duties 

and  fees 297 


INDEX  705 

of  real  estate  devised  at  a  valuation   502-5 

of  widow's  or  children's  exemption  403, 405-6 

Approval  of  bond  of1  Register  of  Walls 256 

Arrearages  of  rent-charge  to  be  included  in  inventory 397 

Assets,  examination  of  540 

of  decedent  included  in  inventory  and  appraisement  ....  394-9 

pleadings  as  to 512-22 

rents  as,  for  payment  of  decedent's  debts 417 

Association,  religious,  beneficial  or  charitable,  title  in,  relief 

under  Revised  Price  Act 176 

Attachment  execution  in  Orphans'  Court 130 

for  contempt  in  Orphans'  Court,  discharge  from 139 

in  Orphans'  Court,  dissolution  of  138 

of  absconding  party  in  Orphans'  Court  137 

the  person  in  Orphans'  Court  127, 132, 137-9 

witnesses  to  wills 268 

to  compel  entry  of  security  by  fiduciary 579 

enforce  order  on  executors  or  administrators  to  apply 

for  stay  of  execution 429 

production  of  will  267 

Attestation  of  process  in  Orphans'  Court in 

Attorney,  power  of  fiduciary  to  convey  by 495 

Audit 548-50 

of  accounts,  distribution  without  553 

guardian's  accounts  612 

Auditor,  appointment  of,  in  partition,  to  ascertain  liens,  etc.,  43 

for  accounts   549-5° 

reference  to,  of  appeal  from  Orphans'  Court 164 

reports  of,  review  of  551 

to  apply  proceeds  of  sale,  etc.,  under  Revised  Price  Act  . .  190 

ascertain  amount  due  in  partition  57 

Authentication  of  copies  of  wills  592 

Authority  of  fiduciary  to  sell  securities  distributed  to  him  in 

kind 557 

Award  of  distribution  protects  executor  or  administrator  ....  553 

inquest  in  partition 8 

to  foreign  executor  or  administrator 595 

trustee   598 

B 

Balances  due  by  fiduciary,  transcript  of 561-2 

Beneficial  associations,  title  in,  relief  under  Revised  Price  Act  176 
Bequests,  see  also  Legacies. 

for  religious  or  charitable  uses   222 

general,  operation  of 229 

importing  failure  of  issue,  construction  of  232 

of  emblements,  crops,  rents,  etc 223 

personalty   revocation   of    242 

over  $100  under  nuncupative  will  219 

to  corporation,  notice  of  .,.,,...........,.,,... 465 

45 


706  INDEX 

Bids  above  valuation  in  partition  16 

Bill  of  costs  in  Orphans'  Court  91 

Register  of  Wills   287 

Birth  of  children  as  revoking  wills  pro  tanto 243 

Blood  of  first  purchaser,  rule  as  to,  abrogated 332 

Bond  and  mortgage  of  decedent 425 

copies  of,  duty  of  Register  of  Wills  to  furnish 274 

effect  of  granting  letters  without  385 

exceptions  to  387 

in  partition  proceedings  35 

for  caveat  281-2 

of  administrator  c.  t  a.  383 

executors    and    administrators    382-7 

for  distribution  of    proceeds    of    sheriffs'    sales 

against  decedent  427 

of  deceased  fiduciary  386 

of   fiduciaries    388-90 

in  sales  for  distribution 32 

foreign  fiduciary  on  removat  of  property  506 

guardians    605 

legatees  under  legacies  charged  on  land  473 

non-resident  fiduciary 588 

Register  of  Wills   256-60 

acknowledgment,  filing  and  recording  of    257 

form  and  approval  of   256 

trustee  durante  absentia  618 

for  life  interest  in  partition  41 

unknown  parties  in  partition   25 

on  appeal  from  the  Register  of  Wills  282 

required  on  application  for  sale  or  mortgage  of  real  estate 

to  pay  debts  437 

decree  of  presumption  of  death  371 

lease   of    real    estate    by    testamentary    trustees    or 

guardians 497 

petition  to  release  real  estate  from  lien  of  debts  ....  458 

foreclosure  of  mortgage  under  Revised  Price  Act  . . .  188 

under  Revised  Price  Act 192 

refunding  559-6o 

on  distribution  of  estate  of  presumed  decedent 373 

Bonds  to  be  included  in  inventory  and  appraisement 394 

transfer  of  by  foreign  fiduciary  592 

Books  and  papers,  production  of,  in  Orphans'  Court 155 

Brothers  and  sisters  as  heirs  of  illegitimates  under  Intestate 

Act   335 

legacies  and  devises  to,  not  to  lapse  when  274 

rights  of,  under  Intestate  Act   318-21 

Building  devised,  designation  of  curtilage  508-11 


INDEX 


707 


Caveats   281-4 

Certification  to  Orphans'  Court  of  proceedings  on  issue  d.  v.  n.  279-80 
Certified  copies  of  bonds,  etc.,  duty  of  Register  of  Wills  to 

furnish 274 

decrees  of  allowance  of  $5,ooo,  etc.,  under  Intestate  Act, 

to  be  recorded,  etc 303 

wills    270 

probated  in  other  counties,  filing  of  275 

Cestuis  que  trust,  majority  of,  right  to  removal  of  trustee  . . .  574 

Charge,  discharge  of  real  estate  from  lien  of  481-90 

Charitable  and  religious  uses,  bequests  for 222 

associations,  title  in,  relief  under  Revised  Price  Act 176 

Child  and  surviving  spouse,  rights  of  under  Intestate  Act  ....  294 

Children,  adopted,  rights  of,  under  Intestate  Act 331-9 

adopted,  rights  of  under  will   236-7 

adopted,  rights  of  against  will 243 

and  surviving  spouse,  rights  of  under  Intestate  Act 295 

birth  or  adoption  of,  as  revoking  wills  pro  tanto 243 

devises  and  legacies  to  236-7 

exemption  403-14 

illegitimate,  inheritance  of,  under  Intestate  Act 334-7 

legitimate     and     illegitimate,     inheritance     as     between 

under  Intestate  Act  335 

minor,  exemption  to  407-8 

maintenance  of,  from  spendthrift  trust  240 

of  deceased  grandparents,  rights  of,  under  Intestate  Act  325,  329 

of  nephews  and  nieces,  rights  of,  under  Intestate  Act  320 

posthumous,  rights  between,  under  Intestate  Act  344 

Choice  of  guardian  by  minors  599-601 

Citation  by  Register  of  Wills  to  parties  in  interest  in  estate 

of  presumed  decedent  377 

for  appeal  from  Register  of  Wills  285 

inquest  in  partition  5 

in  the  Orphans'  Court   116-23 

alias  and  pluries   122 

decree  on  default  124 

service   of    117-20,124 

place  of  119 

proof  of 124 

return  of  121 

of  executors  and  administrators  to  account  539 

on  petition  for  discharge  of  residuary  estate  from  annui- 
ties or  legacies  payable  in  future  475 

removal  of  fiduciary  575 

to  discharge  real  estate  where  charge  paid   485 

to  elect  to  take  under  or  against  will  248 

file  inventory  and  appraisement  393 

heirs  on  petition  of  surviving  spouse  under  Intestate 

Act  where  no  known  heirs  341 


7o8 


INDEX 


to  produce  will   267 

to  refuse  or  accept  real  estate  at  an  appraisement 505 

under  Revised  Price  Act   183 

Claimants,  notice  of  filing-  accounts  to 541 

Claims  against  estate,  compromise  of  527 

not  presented  at  audit  barred  555 

under  Intestate  Act,  limitation  of  345 

Clerk  of  Orphans'  Court  and  assistants  87-91 

to  execute  deeds,  etc.,  in  sale  or  mortgage  to  fiduciary 

under  Revised  Price  Act  202 

to    execute    deeds    under    Revised    Price    Act    on    re- 
moval of   fiduciary    196-201 

Coal  and  timber  lands,  partition  of,  jurisdiction  of  Orphans' 

Court 3 

Coal  mining  lease,  fiduciaries'  power  as  to   624-5 

Codicil,  effect  of,  on  will  241 

Co-fiduciaries,  actions  between  525 

power  of  survivor,  on  removal,  etc.,  of  one,  in  sale  under 

Revised  Price  Act  197 

Collateral  heirs,  rights  of  under  Intestate  Act   317-21 

inheritances  not  affected  by  power  in  foreign  fiduciary  to 

sell  real  estate 593 

Collection  of  rents  of  decedent  for  payment  of  debts 417 

Commission  collectible  when  same  person,  executor  or  trustee  538 

to  take  depositions  of  witnesses  to  wills  269 

to   take   testimony    153 

Commissioners  in  partition,  appointment  of   8 

compensation  of  9 

where  land  in  different  counties  53 

making  of  partition  by  10-13 

to  designate  curtilage  of  building  devised 508 

Common  Pleas,  filing  of  transcript  in,  from  Orphans'  Court  148 

filing  writ  of  sequestration  in,  from  Orphans'  Court 136 

form  of  precept  to  160 

issue  to  on  proceeds  of  sale 161-2 

judge  sitting  in  Orphans'  Court   77-8o 

jurisdiction  of,  over  trusts,  not  impaired  574 

jurisdiction  of  under  Revised  Price  Act  168-184 

Orphans'  Court  judge  sitting  in   81-4 

precept  to  on  issue  of  devisavit  vel  non  278 

transcript  to,  of  balance  due  by  fiduciary 561 

Commonwealth,  fee  for,  on  issue  of  letters  289 

tax  for,  collection  of,  by  Register  of  Wills  287 

Compensation  of  appraisers 402 

of  real  estate  devised  at  a  valuation  503 

widow's  or  children's  exemption  405 

commissioners  or  jurors   in  partition    9 

to  designate  curtilage  of  building  devised  509 

Common  Pleas  judge  sitting  in  Orphans'  Court  80 

examiners    540 


INDEX  709 

executors,  etc.,  on  partition 46 

judge  specially  called  in  Orphans'  Court  76 

Orphans'  Court  judge  sitting  in  Common  Pleas  84 

where  executors  are  also  trustees  538 

Compromise  of  actions  by  fiduciaries 527 

Confirmation  of  accounts  dependent  on  notice  544 

appraisement  of  widow's  or  children's  exemption  406 

decree  of  presumption  of  death  370 

guardians'  accounts   612 

report  of  commissioners  to  designate  curtilage  of  building 

devised 5IQ 

sale  to  pay  debts 453 

under  Revised  Price  Act 207 

Consolidation  of  mining  lands  under  Revised  Price  Act 172 

Construction  of  "die  without  issue",  etc 232 

wills  as  to  time  they  take  effect  227 

Contempt,  attachment  for,  in  Orphans'  Court,  discharge  from  139 
Continuance  where  executor  or  administrator  substituted  as 

party 5*8 

Contracts  of  decedent  for  sale  or  purchase  of  real  estate  . . .  459-64 

to  sell  real  estate,  jurisdiction  of  Orphans'  Court  in 101 

Control  of  Orphans'  Court  over  sale  of  real  estate  by  executor  493 
Conveyance  by  owner  of   undivided  interest  under  Revised 

Price  Act 173 

of  real  estate  on  decree  of  presumption  of  death 371 

by  executors 492 

or  mortgage  for  payment  of  debts  where  fiduciary  is  pur- 
chaser or  mortgagee  447 

Copy,  certified,  of  decree  of  allowance  of  $5,000,  etc.,  under 

Intestate  Act  to  be  recorded,  etc 303 

of  bond,  etc.,  duty  of  Register  of  Wills  to  furnish   274 

of  Register  of  Wills  as  evidence  258 

of  inventory  and  appraisement  as  evidence 273 

of  wills,  certified  270 

probate  of 266 

probated  in  other  county,  filing  of 275 

Corporate  bond  of  fiduciary,  expense  of  390 

Corporation,  bond  of  under  Revised  Price  Act  192  ' 

devise  or  bequest  to,  notice  of  ; 465 

fiduciary,  oath  of  officer 381 

of  other  states  as  fiduciaries  588 

organization  of,  to  carry  on  decedent's  business  532-4 

stock  of,  voting  of,  by  fiduciary  535 

testamentary  trustee  or  guardian,  bond  required  on  lease 

of  real  estate  497 

unable  to  convey,  title  in,  relief  under  Revised  Price  Act  176 

Cost  of  recording  decree  of  widow's  or  children's  exemption  414 
Costs  attendant  to  granting  or  revoking  letters  on  estate  of 

presumed   decedent    379 

bill  of,  in  Orphans'  Court 91 


710  INDEX 

Register  of  Wills   287 

collection  of  by  Register  of   Wills    288 

of  audit  of  guardian's  account  613 

proceedings  to  designate  curtilage  of  building  devised  511 

discharge  real  estate  from  lien  of  legacies,  etc 489 

proceedings  to  reduce  bond  of  fiduciary  389 

on  caveat  or  appeal  from  Register  of  Wills  283 

partition    45-6 

petition  to  reopen  decree   144 

proceedings  to  enforce  contract  of  decedent  for  sale  or 

purchase  of   real   estate    462 

oral  depositions  outside  of  state  154 

Co-trustee,  resident,  of  non-resident  fiduciary  589 

Counsel  fee  on  partition  45 

Counter  security,  requirement  of    581 

Counties,  real  estate  in  different,  claimed  as  allowance  under 

Intestate  Act,  proceedings  to  set  aside  302 

real  estate  in  different,  jurisdiction  to  take  at  appraisement  501 
real  estate  in  different,  jurisdiction  to  discharge  from  lien 

of  legacies,  etc 481 

real  estate  in  different,  sale  or  mortgage  of,  under  Re- 
vised  Price   Act    203-4 

to  which  provisions  as  to  bond  of  Register  of  Wills  do 

not  apply 259 

County,  will  probated  in  one,  filing  certified  copy  in  another  275 

Court  rooms  of  Orphans'  Court  86 

Creditors,  application  of  for  sale  or  mortgage  of  real  estate 

to  pay  debts  433 

barred  by  failing  to  present  claims  555 

Crops,  bequests  of  ; 223 

Cross  or  mark  as  signature  to  will  216 

Curtesy,  husband's  share  under  Intestate  Act  in  lieu  of   305 

Curtilage  of  building  devised,  designation  of  508-11 

Custody  of  estate  set  apart  from  residue  to  pay  annuity,  etc.,  478 

of  person  of  child  by  testamentary  guardian   224 

D 

Death  of  executor,  etc.,  effect  of,  on  sale  in  partition 42 

of  fiduciary,  effect  of,  on  sale  under  Revised  Price  Act..  196-201 

of  plaintiff,  abatement  of  action  on 522 

Debt,  evidences  of,  to  be  included  in  inventory  and  appraise- 
ment     394 

Debts,  account  of,  on  application  to  Orphans'  Court  for  sale 

or  mortgage  of  real  estate  to  pay  debts  434 

due  by  executor  to  decedent  to  be  included  in  inventory  395 

estate,  statute  of  limitations  as  to   523 

lien  of,  proceedings  to  relieve  real  estate  from  456-8 

of  decedent   415-58 

discharge  of,  by  decree  under  Revised  Price  Act 186 

sale  or  mortgage  of  real  estate  for 430-55 


INDEX  711 

Deceased  fiduciary,  bond  of  executor  or  administrator  of  ....  386 

Decedent,   presumed    366-80 

Decedent's  debts,  discharge  of  by  decree  under  Revised  Price 

Act  186 

lien  of  418-29 

payment  of   415-6 

sale  or  mortgage  of  real  estate  for  43°-55 

contracts  for  sale  or  purchase  of  real  estate 459-64 

undivided  interest  in  partition,  valuation  of  14 

Decree  as  to  surplus  income  from  estate  set  apart  out  of  resi- 
due to  pay  annuity  or  legacy 478 

effect  of,  under  Revised  Price  Act 186 

for  delivery  of  trust  property,  enforcement  of 141-2 

in  partition,  effect  of  22 

proceedings  under  Revised  Price  Act  183 

of  allowance  of  $5,ooo,  etc.,  under  Intestate  Act,  certified 

copy  of  to  be  recorded,  etc 303 

of  confirmation  of  commissioners  to  designate  curtilage  of 

building  devised  510 

of  Orphans'  Court  on  final  accounts  of  guardians 615 

of  presumption  of  death 369-71 

of   reduction  of   fund   set  apart  out  of  residue  to   pay 

annuities  or  legacies  479 

of  sale  in  partition   30 

of  specific  performance  of  decedent's  contract  for  sale  or 

purchase  of  real  estate  459 

of  widow's  or  children's  exemption,  recording,  etc.,  of..  414 

on  audit  of  guardian's  account  612-4 

on  petition  for  discharge  of  residuary  estate  from  annuity 

or  legacy  payable  in  future   476 

on  petition  for  removal  of  fiduciary   575 

on  petition  of  surviving  spouse  under  Intestate  Act  where 

no    known   heirs    341 

on  petition  to  discharge  real  estate  from  lien  of  legacies, 

etc 482-7 

when   charge   paid    416 

on  petition  to  enforce  payment  of  legacy  charged  on  land  471 

on  petition  to  relieve  real  estate  from  lien  of  debts 458 

on  petition  where  real  estate  is  devised  to  executor  at  a 

valuation    506 

on  proof  of  service  of  citation  in  Orphans'  Court 124 

proceedings  in  Orphans'  Court  to  compel  obedience  to  ....  126-49 

under  Revised  Price  Act,  execution  of  184 

Deed,  effect  of,  under  contract  of  decedent  for  sale  or  pur- 
chase of  real  estate  462 

Deeds,  acknowledgment  of  under  Revised  Price  Act 195 

and   mortgages,   acknowledgments  of,  when  given  under 
application  for  sale  or  mortgage  of  real  estate  to  pay 

debts  440 

Default  of  appearance  in  Orphans'  Court,  proceedings  on  ...  125 


712  INDEX 

Defect  in  appointment  of  fiduciary,  effect  of,  on  sale  under 

Revised  Price  Act  201 

in  appointment  of  fiduciary,  effect  of,  on  sale  or  mortgage 

of    real   estate   to   pay   debts    446 

in  appointment  relief  under  Revised  Price  Act 180 

Delegation  of  discretion  by  fiduciary  forbidden 495 

Delivery  of  trust  property,  enforcement  of  141-2 

Depositions,  commission  to  take,  by  Register  of  Wills  269 

in  Orphans'  Court 152-4 

oral,  oustide  of  state ' 154 

Deputy  Register  of  Wills,  appointment  and  duties  261 

Descendants  of  brother  and  sister,  rights  of  under  Intestate 

Act   321 

of  deceased  grandparents,  rights  of  under  Intestate  Act  327-31 

rights  of,  under  Intestate  Act  31 1-5 

Descent  and  distribution  in  cases  of  intestacy 292-352 

Desertion  by  husband  bars  share  in  wife's  estate  under  Intes- 
tate Act 306 

by   parent,   effect   of   on   right   to   appoint   testamentary 

guardian    226 

by  wife,  bars  share  in  husband's  estate  under  Intestate 

Act   307 

Designation  of  curtilage  of  building  devised 508-11 

Destroyed  or  lost  records  in  Orphans'  Court  156 

Deviation  from  forms,  immaterial,  effect  of  620 

Devisavit  vel  non,  certification  to  Orphans'  Court  of  proceed- 
ings on   279-80 

issue  of,  precept  for  160, 278 

Devisee,  forfeiture  of  right  of,  for  murder  of  testator 244 

Devises  for  limited  purposes,  relief  under  Revised  Price  Act  178 

general,  operation  of  229 

importing  failure  of  issue,  construction  of  232 

in  favor  of  lineal  descendants,  not  to  lapse  when 233 

lapsed  and  void  233-5 

of  estate  in  fee  tail  231 

of  real  estate   230 

at  a  valuation,  procedure  501-7 

revocation  of  241 

subject  to  mortgage 239 

to  brothers  and  sisters,  not  to  lapse  when 234 

children 236-7 

corporation,  notice  of   465 

fall  into  residue  when 235 

"Die  without  issue,"  etc.,  construction  of  232 

Disability,  legal,  title  in  person  under,  relief  under  Revised 

Price  Act 176 

Discharge  from  attachment  for  contempt  in  Orphans'  Court  139 

of  fiduciaries  and  sureties 563-4 

of  judgment  against  fiduciary  on  transcript  to  Common 

Pleas    562 


INDEX  713 

in  Common  Pleas,  on  transcript  from;  Orphans'  Court  149 

of  liens  b>   sale  in  partition   36 

to  pay  debts ; 454 

under  Revised  Price  Act   208 

of  liens  of  decedent's  debts  by  decree  under  Revised  Price 

Act    186 

of  real  and  personal  estate  from  lien  of  debts,  etc.,  juris- 
diction of  the  Orphans'  Court  in 103 

of  the  Orphans'  Court  in  103 

of  real  estate  from  annuities  or  legacies  payable  in  future  474-80 

from  lien  of  legacies,  etc 481-90 

of  residue  after  providing  for  annuity  or  legacy  payable  in 

future 477 

of  surety,  procedure  for   582 

Discretion,  power  of  fiduciary  to  delegate 495 

Disposition  of  appeals  from  Orphans'  Court 164 

title,  jurisdiction  of  Orphans'  Court  in  99 

Dissolution  of  attachment  in  Orphans'  Court  138 

of    sequestration,    filing    of    136 

Distraint  for  rent  by  executor  or  administrator 515 

Distribution  by  employer  of  wages   558 

compromise  by  fiduciary  of  matters  pertaining  to 527 

in  cases  of  intestacy 292-352 

in  kind    556 

of  estates  552-8 

jurisdiction  of  Orphans'  Court  in  97 

not  over  $300 554 

of  presumed  decedent  372-3 

of  moneys  paid  into  court  on  petition  to  discharge  real  es- 
tate   from   lien   of   legacies,   etc 408 

of  proceeds  of  sale,  issue  on,   from   Orphans'  Court  to 

Common    Pleas    161-2 

of  proceeds  of  sale  under  petition  to  enforce  payment  of 

legacies  charged  on  land   471 

of  proceeds  of   sheriff's  sale   against  decedent 427 

Dividends,  etc.,  from  property  set  apart  under  Intestate  Act 

as  allowance  of  $5,000,  etc 301 

of  property  claimed  under  widow's  or  children's  exemption  412 

Docketing  of  writ  of  sequestration  in  prothonotary's  office  . .  136 

Dockets  of  Orphans'  Court  89 

partition 61 

Domicile  of  decedent  as  determining  probate  of  will 263 

Dower,  discharge  of  real  estate  from  lien  of  481-90 

of  widow  in  partition   39 

widow's  share  under  Intestate  Act  in  lieu  of  304 

Drunkard,  habitual,  title  in,  relief  under  Revised  Price  Act  . .  176 

Drunkenness  as  ground  of  removal  of  fiduciary  567 

Durante  absentia,  trustees  617-9 

Duties  and  liabilities  of  administrators  c.  t.  a 362 

of  Deputy  Register  of  Wills 261 

of  trustee  durante  absentia  619 


714  INDEX 

E 

Education  of  minor,  allowance  for  607 

from  proceeds  of  sale  under  Revised  Price  Act 189 

Effect  of  appeal  from  Register  of  Wills 286 

of   decree   of   presumption   of   death    371 

setting  apart  portion  of  residuary  estate  to  pay  annui- 
ties or  legacies  480 

of  failure  to  give  bond  on  caveat  or  appeal 282 

of  probate  of  will  after  three  years  277 

of    removal   of    fiduciaries    577 

of  sale,  etc.,  under  Revised  Price  Act  on  removal,  etc.,  of 

fiduciaries 199-201 

of  sale  or  mortgage  of  real  estate  to  pay  debts  on  removal, 

etc.,    of    fiduciaries    444 

of  vacation  of  decree  of  presumption  of  death 374 

Ejectment  by  vendor,  action  of,  to  survive  514 

Election  by  guardians  and  trustees  498-500 

of  widow,  effect  on  purchaser  in  partition  39 

to  take  under  or  against  will  245-9 

Emblements,  bequests  of  223 

Employer,    distribution   of   wages 558 

Enforcement  of  order  or  decree  for  delivery  of  trust  property  141-2 

of   rights   by   superseding   fiduciary    578 

Entire  vacancy,  trustee  to  fill  ,  585 

Equality  of  shares  under  Intestate  Act  343 

Estates  acquired  under  Intestate  Act 342-3 

distribution  of    552-8 

for  life  of  another  to  be  included  in  inventory,  etc 398 

tail  barred  by  decree  under  Revised  Price  Act 186 

Evidence,  certified  copies  of  wills  as   270 

copies  of  bond  of  Register  of  Wills  as 258 

inventory  and  appraisement  as 273 

in  Orphans'  Court 151-8 

record  of  decree  on  petition  of  surviving  spouse  under 

Intestate  Act,  where  no  known  heirs  as  341 

Examination  of  assets   540 

Examiner  of  assets  540 

office  of,  in  Orphans'  Court  to  take  testimony,  abolished  152 

to  take  oral  depositions  outside  of  state 154 

Exceptions  to  bond  taken  by  Register  of  Wills  387 

Execution  against  real  estate  of  fiduciary  for  balance  due 561 

by  executors  or  administrators  of  deceased  plaintiff 517 

for  costs  before  Register  of  Wills   288 

on  caveat  or  appeal  from  Register  of  Wills 283 

in  Common  Pleas  on  transcripts  from  Orphans'  Court  . .  148 
of  deed  under  contract  of  decedent  for  sale  or  purchase 

of  real  estate  462 

of  decrees  under  Revised  Price  Act 184 

of  nuncupative  wills    218 

of    wills    215-16 


INDEX  715 

on  judgments  against  decedents  426 

for  debts  of  decedent  422 

stay  of,  against  decedent  428-9 

Executor  as  grantee  in  deed  under  contract  of  decedent  for 

sale  of  real  estate  464 

not  to  be  appointed  guardian   601 

of  judgment  creditor,  revival  of  judgment  against 526 

real  estate  devised  to,  at  a  valuation 506 

Executors'  accounts   539-47 

of  sales  in  partition  by  44 

actions  by  and  against  513 

acts  of,  not  impeached  by  later  will 365 

application  of,  for  sale  or1  mortgage  of  real  estate  to  pay 

debts  432 

to  stay  execution  428-9 

bonds  of  382-7 

commission  where  also  trustee 538 

compensation  on  partition   46 

debts  of,  to  decedent,  to  be  included  in  inventory,  etc 395 

effect  of  removal,  etc.,  on  sale  in  partition 42 

foreign    59O-8 

awards  to  595 

jurisdiction  of  Orphans'  Court  in  appointment,  etc 96 

liability  of,  for  interest  536-7 

non-resident,  bond  of  384 

oath  of   380-1 

pleading  by,  effect  of  521 

of  deceased  fiduciary,  bond  of  386 

power  of,  as  to  real  estate  491-4 

purchasers  of  real  estate  from,  obligations  of   496 

removal,  etc.,  effect  of,  on  sale,  etc.,  under  Revised  Price 

Act  196-201 

substitution  of    512-22 

Executory  devises,  barred  by  decree  under  Revised  Price  Act  186 
Exclusive  remedy  to  enforce  contract  of  decedent  for  sale  or 

purchase  of  real  estate 460 

Exemption  of  widows  and  children  403-14 

when  estate  less  than  $500   409 

to  minor  children   407-8 

widow's,  not  disturbed  by  allowance  of  $5,ooo,  etc 296 

Expense  of  advertising  accounts    542 

of  advertising  widow's  or  children's  exemption  claim....  406 

of    corporate    bond    of    fiduciary    399 

of   procuring   guaranty   of   investments    531 

F 

Failure  of  issue,  construction  of  devise  or  bequest  importing  232 

to  deliver  election,  effect  of  246 

to  furnish  translation  of  will  in  foreign  language,  effect  of  272 

to  give  bond  on  caveat  or  appeal,  effect  of 282 


716  INDEX 

pay   as    ground    for    removal    of    fiduciary 571 

Father  and  mother,  rights  of  under  Intestate  Act  316 

appointment  of  testamentary  guardian  by  224 

Fee-tail,  devise  of  estate  in   231 

Fees  for  copies  of  bonds,  etc  274 

for  Commonwealth  on   issue  of  letters   289 

for  recording  decree  on  petition  to  discharge  real  estate 

from  lien  of  legacies,  etc.  482 

for  recording  decree  on  petition  of  surviving  spouse  under 

Intestate  Act  where  no  known  heirs   341 

for   recording   election    249 

for  recording  in  Orphans'  Court   89-90 

for  recording  inventory  and  appraisement   273 

for  recording  proceedings  in  partition  61 

of  appraisers  of  allowance  of  $5,ooo,    etc.    to    surviving 

spouse  under  Intestate  Act   297 

of  sheriff  for  service  of  writs  in  Orphans'  Court 150 

of  witness  to  will  for  appearing   268 

Fiduciaries,  abatement  of  actions  by  or  against  520 

Act  353-623 

actions  against  by  co-fiduciaries   525 

balance  due  by,  transcripts  of  561-2 

bonds   388-90 

compromise  by 527 

deceased,  bond  of  executors  or  administrators  of 386 

discharge  of   563-4 

foreign 59O-8 

investments  by 528 

liability  of,  for  loss  in  investments 530 

non-resident 588-9 

proceedings  on  removal,  etc.,  effect  on  sale  or  mortgage 

of  real  estate  to  pay  debts  441-6 

power  to  convey  by  attorney  495 

deal  in  coal  leases 624-5 

receiving  distribution  in  kind,  duty  of  557 

removal  of 565-78 

requirement  of  security  from  579-82 

resident  in  another  county,  actions  against 524 

sale  or  mortgage  to  under  Revised  Price  Act  202 

statement  of  investments  by  583 

superseding,  rights  of 578 

voting  of  stock  by 535 

"Fiduciary"  defined  354 

Fieri  facias  or  sequestration  in  Orphans'  Court  145,  147 

writ  of  in  Orphans'  Court  129 

Filing  acounts  by  executors  and  administrators  539 

of  guardians,  notice  of  61 1 

of   trustees,    notice    of    547 

and  recording  wills  in  foreign  languages   271 

bond  of  Register  of  Wills  257 


INDEX  717 

certified  copy  of  will  probated  in  other  counties 275 

copy  in  other  counties  of  actions  to  enforce  lien  of  dece- 
dent's debts 421 

election    249 

inventory  and  appraisement   392 

report  of  appraisers  of  widow's  or  children's  exemption  406 

wills 270 

Final  accounts  of  guardians  615 

Fines,  process  in  Orphans'  Court  to  recover 146 

First  purchaser,  rule  as  to  blood,  of,  abrogated  332 

Foreclosure  of  mortgage  under  Revised  Price  Act  188 

Foreign  executor  or  administrator,  awards   to 595 

fiduciary   SQO-8 

language,  wills  in    271-2 

Forfeiture  of  right  to  appoint  testamentary  guardian 226 

of  rights  by  murderer  of  testator   244 

by  murderer  of  an  intestate  347 

Forfeitures,   process  to   recover,   in   Orphans'    Court 146 

to  Commonwealth  barred  by  decree  under  Revised  Price 

Act   186 

Form  and  execution  of  wills  215-6 

immaterial  deviation  from  620 

of   bond  of  administrator    382 

non-resident  executor  384 

Register  of  Wills   256 

of  election  to  take  under  or  against  wills 246 

of  guardian's  bond   605 

of  oath  of  executor  or  administrator    380 

of  precept  to  Common  Pleas  on  issue  from  Orphans'  Court  160 

devisavit  vel  non   278 

of  writ  of  sequestration  in  Orphans'   Court 134 

G 

General  bequests,  operation  of 229 

devises,  operation  of    229 

Grandchildren    of    deceased    grandparents,    rights    of,    under 

Intestate  Act   326-330 

rights  of  under  Intestate  Act  310-314 

Grandparents  and  their  issue,  rights  of  under  Intestate  Act..  324-31 

maternal,  as  heirs  of  illegitimates  under  Intestate  Act  . . .  334 

Granting  letters,  advertisement  of  391 

letters  on  estate  of  presumed  decedent 370 

letters  testamentary  or  of  administration    355-64 

Ground   rents,  conveyances  on,   execution  of,  under  Revised 

Price  Act   114 

sale  of,  etc.,  under  Revised  Price  Act  169, 170 

Grounds  for  removal  of  fiduciaries  565-75 

Guaranty  of  investments,  authority  to  procure  531 

Guardians  599-616 

accounts  of  608-15 

ad  litem   616 


718  INDEX 

on  audit  of  guardian's  account 612 

discharge  of 563 

election  by  498-500 

final  accounts 615 

foreign    SQi-8 

jurisdiction  of  Orphans'  Court  in  appointment,  etc 93 

notice  to 6*16 

removal,  etc.,  effect  of,  on  sale  under  Revised  Price  Act  196-201 

for  mismanagement,  etc 570 

testamentary    224-6 

leases  of  real  estate  by  497 

H 

Hearing  by  Orphans'  Court  or  master  on  petition  for  letters 

on  estate  of  presumed  decedent  368 

of  petition  on  contract  by  decedent  for  sale  or  purchase 

of  real  estate 459 

to  discharge   real   estate   from   annuities   or  legacies 

payable  in  the  future 475 

to  discharge  real  estate  from  lien  of  legacies,  etc 482 

to  discharge  real  estate  where  charge  paid  486 

to  relieve  real  estate  from  lien  of  debts 457 

on  exceptions  to  bond  of  executor  or  administrator 387 

Heirs,  collateral,  rights  of  under  Intestate  Act 317-21 

Husband's  rights  under  Intestate  Act  barred  by  desertion  or 

non-support   306 

share  under  Intestate  Act  in  lieu  of  curtesy 305 

I 

Illegitimates,  legitimation  as  to  mother   336 

legitimation  by  marriage   337 

rights  of,  under  Intestate   Act    334-7 

Immaterial  deviation  from  forms,  effect  of 620 

Improvements,  payment  for,  with  proceeds  of  sale  under  Re- 
vised Price  Act 190 

Inadequate  power  of  sale,  relief  under  Revised  Price  Act 179 

Incapacity  of  executors,  etc.,  effect  of,  on  sale  in  partition 42 

fiduciary,  under  application  for  sale  or  mortgage  to  pay 

debts 441-6 

Income,    apportionment    of    468 

from  property  claimed  under  widow's  or  children's  exemp- 
tion    412 

spendthrift  trusts,  liability  of 240 

surplus,  from  estate  set  apart  from  residue  to  pay  annui- 
ties or  legacies   478 

Incompetency  as  ground  for  removal  of  fiduciary  568 

Indefinite  failure  of  issue,  avoided  232 

Index  of  actions  to  enforce  lien  of  decedent's  debts 418 

partition 62 


INDEX  719 

Indexing  by  prothonotary  of  actions  to  enforce  lien  of  dece- 
dent's debts 421 

elections  249 

of  guardians  or  trustees 498 

petitions  on  contracts  of  decedent  for  sale  or  purchase  of 

real  estate  461 

Inheritance  among  adopted  children  and  relatives  338-9 

as  between  mother,  etc.,  of  illegitimates  334 

brothers  and  sisters  of  illegitimates 335 

Injunction  in  Orphans'  Court 114 

Inquest  in  partition,  award  of  8 

making  of  partition  by  10-13 

Insanity  of  executors,  etc.,  effect  of,  on  sale  in  partition  ....  42 

fiduciary,  effect  of,  on  sale  under  Revised  Price  Act 196-201 

Intent  of  Intestate  Act  352 

Interest,  liability  of  executor  or  administrator  for  536-7 

on  money  charged  on  land 472 

on   pecuniary    legacy    467 

on  property  claimed  under  widow's  or  children's  exemption  412 
set  apart  under  Intestate  Act  as  allowance  of  $5,000, 

etc 301 

Interests  of  persons  not  in  esse,  protection  of,  in  partition  ...  60 

Intervention  in  actions  by  persons  presumed  to  be  dead 375 

Intestacy,  descent  and  distribution  in  cases  of   292-352 

Intestate  Act  292-352 

Inventory  and  appraisement   392-402 

recording,  etc 273 

by  guardian 606 

copies'  of,  duty  of  Register  of  Wills  to  furnish 274 

of  trustees  durante  absentia  618 

on  application  for  sale  or  mortgage  to  pay  debts 434 

refusal  of,  as  ground  for  removal  of  fiduciary  566 

Investment  of  proceeds  of  sale  under  Revised  Price  Act 185 

pendente  lite  on  issue  on  proceeds  of  sale  from  Orphans' 

Court  to  Common  Pleas  161-2 

Investments  by  fiduciaries   528-31 

by  trustee  for  unknown  parties,  in  partition 25 

legal   528-30 

statement  of 583 

Irregularity  of  appointment  of  fiduciary,  effect  of,  on  sale, 

etc.,  under  Revised  Price  Act  201 

of  appointment  of  fiduciary,  effect  of,  on  sale  or  mortgage 

of  real  estate  to  pay  debts   446 

Issue,  failure  of,  devise  or  bequest  importing  232 

from  Orphans'  Court  to  Common  Pleas  on  distribution 

of  proceeds  of  sale 161-2 

of  descendants  of  deceased  grandparents,  rights  of  under 

Intestate  Act  331 

of  devisavit  vel  non  on  certification  of  proceedings  to  Com- 
mon Pleas ,,,,,,, 279-80 


720  INDEX 

on  precept  to  Common  Pleas   278 

rights  of  under  Intestate  Act  308-15 

taking  by  representation  under  Intestate  Act 315 

to  Common  Pleas  from  Orphans'  Court 159-62 

precept  for  160 

to  determine  rights  of  surviving  spouse  under  Intestate 

Act  where  no  known  heirs  -341 

J 

Jeopardy  of  property  as  grounds  for  removal  of  fiduciary  ....  573 

Joint  fiduciaries,  discharge  of    564 

power  of  survivor  on  removal  of  one,  in  sale,  etc.,  under 

Revised  Price  Act  197 

Judges,  calling  in  other,  when  75-6 

in  Orphans'  Court,  compensation  when  specially  called  ...  76 

of  Common  Pleas  sitting  in  Orphans'  Court 77-8o 

Orphans'  Court  69-72 

sitting  in  Common  Pleas  81-4 

Judgments  against  decedents'  execution  on 426 

against  executor  or  administrator  of  judgment  creditor, 

revival    of    526 

against  executor  or  administrator  of  presumed  decedent  375 

against  fiduciary,  lien  of,  on  transcript  to  Common  Pleas  561 

in  action  to  enforce  lien  of  decedent's  debts 418 

in  Common  Pleas  on  transcript  from  Orphans'  Court,  pe- 
tition   for    discharge    of    149 

not  lien  at  death  of  decedent  423 

revival  of,  by  foreign  fiduciary  594 

which  were  lien  at  death  of  decedent  424 

Jurisdiction   and   proceedings   in   partition,   land   in    different 

counties  50-6 

of  Common  Pleas  over  trusts  pending  not  impaired  ....  574 

under  Revised  Price  Act 168-184 

of  Orphans'  Court  92-106 

for  collection  of  legacies,  exclusive  470 

on  petition  to  discharge  real  estate  from  lien  of  lega- 
cies, etc 481 

to  appoint  trustees  587 

to  authorize  sale  or  mortgage  of  real  estate  to  pay 

debts    430-2 

to  set  aside  real  estate  in  different  counties  claimed  as 

allowance  of  $5,000,  etc.,  under  Intestate  Act  302 

under  Revised  Price  Act  168-84 

petition  to  discharge  real  estate  from  lien  where  charge 

paid 483 

of  Register  of  Wills   262-355 

of  sales  for  distribution  where  land  in  two  counties 33 

of  trustees'  accounts    545 

to  grant  leave  to  take  at  appraisement  land  in  different 

counties    , , , , , , , , , , 501 


INDEX  721 

under  widow's  or  children's  claim  of  exemption  from  real 

estate  in  different  counties  413 

Jurors  in  partition,  compensation  of   9 

where  land  in  different  counties  53 

Jury  trial  of  facts  in  Common  Pleas  on  issues  from  Orphans' 

Court   159 

K 

Kin,  next  of,  rights  of  under  Intestate  Act 322 

Kind,  distribution  in   556-7 

L 

Land,  legacies  charged  on,  proceedings  to  enforce  payment  of  471-3 

Lapsed  and  void  legacies  and  devises  233-5 

Laying  out  streets,  etc.,  under  Revised  Price  Act 174 

Leases,  coal  mining,  fiduciaries  power  as  to  624-5 

execution  of,  under  Revised  Price  Act 184 

mining,  etc.,  under  Revised  Price  Act 172 

of  real  estate  by  testamentary  guardians  and  trustees 497 

private,  of  real  estate,  by  executor 492 

under  Revised  Price  Act,  acknowledgment  of 195 

Legacies,  see  also  Bequests. 

abatement  of   466 

charged  on/  land,  procedure  to  enforce  payment  of 471-3 

collection  of  470 

discharge  of  real  estate  from  lien  of  481-90 

in  favor  of  lineal  descendant  does  not  lapse  when 233 

jurisdiction  of  Orphans'  Court  to  enforce  payment 102 

lapsed  and  void 233-5 

payable  in  future,  discharge  of  residuary  estate  from 474-80 

pecuniary,  interest  on  467 

when  chargeable  on  residuary  real  estate 238 

to  brothers  and  sisters,  not  to  lapse  when 234 

children  236-7 

fall  into  residue  when  235 

when  payable 467 

Legal  investments   528-30 

Legatee  for  life,  security  by 469 

forfeiture  of  rights  for  murder  of  testator 244 

Legitimates  only  to  take  under  Sec.  1-13  of  Intestate  Act 333 

Legitimation  of   illegitimates   as  to  mother 36 

by  marriage  337 

Letters,  advertisement  of  granting 391 

ancillary,  granting  of  355 

cum  testamento  annexo,  granting  of  359 

de  bonis  non,  granting  361 

cum  testamento  annexo,  granting 360 

granted  under  order  of  Court,  effect  on  liability  of  sure- 
ties of  Register  of  Wills  260 

granting  of   355-64 

46 


722  INDEX 

of  administration  durante  minoritate  durante  absentia  and 

pendente  lite 364 

who  entitled  to 357 

on  estate  of  presumed  decedent,  granting  of  370 

revocation  of  by  Register  of  Wills 264 

rogatory 153 

Liability  of  administrators  c.  t.  a 362 

executors  or  administrators  for  interest  536-7 

fiduciaries  for  loss  on  investments   530 

income  from  spendthrift  trusts   240 

purchasers  under  sale  to  pay  debts  455 

Register  of  Wills  for  granting  letters  without  bond 385 

on  Register  of  Wills'  bond  where  letters  granted  under 

order  of  court 260 

Lien  of  debts  of  decedent 418-29 

not  due  within  one  year 419 

procedure  to  relieve  real  estate  from  456-8 

of  judgment  against  fiduciary  on  transcript  to  Common 

Pleas    561 

of  legacies,  etc.,  discharge  of  real  estate  from 481-90 

Liens,  appointment  of  auditor  to  ascertain,  in  partition 43 

discharge  of,  by  sale  in  partition  36 

or  mortgage  to  pay  debts  454 

under  Revised  Price  Act 208 

for   purchase   money,    effect   of    widow's     or    children's 

exemption  404 

on  real  estate,  taken  as  widow's  or  children's  exemption  411 
payment  of,   with   proceeds  of  sale,  etc.,  under  Revised 

Price  Act  190 

Life-interests,   charge  of,   in   partition    28, 40 

in  partition,  trustee   for   41 

Life-tenant,  bequests  of  rents,  etc.,  by  223 

rent  due  to,  action  by  executor  or  administrator  for 516 

security  by 469 

Limitation  of  actions  on  refunding  bonds 560 

claims  under  Intestate  Act 345 

time  for  granting  letters  356 

Limitations,  statute  of,  effect  of,  against  debts  due  estate 523 

Limited  devise,  relief  under  Revised  Price  Act  178 

Limits  of  representation  under  Intestate  Act 323 

Lineal  descendants,  legacies  or  devises  to,  not  to  lapse  when  . .  233 

Lines,  squaring  and  adjusting  under  Revised  Price  Act 171 

Loss  on  investments,  liability  of  fiduciary  for 530 

Lost  or  destroyed  records  in  Orphans'  Court 156 

Lunacy,  etc.,  as  ground  for  removal  of  fiduciary 567 

Lunatics,  title  in,  relief  under  Revised  Price  Act 176 


Maintenance  of  minor  from  proceeds  of  sale  under  Revised 

Price  Act  189 


INDEX 


723 


wife  and  children  from  spendthrift  trust 240 

Majority  of  cestui  que  trust,  right  of,  to  removal  of  fiduciary  574 

Mariners,  wills  of  221 

Mark  or  cross  as  signature  to  will  216 

Marriage  as  revoking  wills  pro  tanto   243 

of  parents  legitimates  illegitimates 337 

Married  women,  right  of,  to  devise  or  bequeath  property  held 

under  sole  and  separate  trust 245 

Master,  appointment  of,  for  sale  or  mortgage  under  Revised 

Price  Act   191 

appointment  of  on  application   for  sale  or  mortgage  to 

pay    debts    436 

appointment  of  on  petition  for  discharge  of  residuary  es- 
tate  from   annuities  or  legacies  payable  in   future 475 

hearing  by,  on  petition  for  letters  on  estate  of  presumed 

decedent 368 

to  consider  investments   529 

to  consider  organization  of  corporation  to  carry  on  busi- 
ness of  decedent   533 

to   determine   compromise   of   actions,   etc 527 

to  take  testimony  in  Orphans'   Court   152 

Mining  lands,  consolidation,  etc.,  under  Revised  Price  Act  . . .  172 

Mining  leases  by  fiduciaries   624-5 

Minor  children,  exemption  to  407-8 

Minors,  allowance  for  support  and  education  of  607 

guardians  of   599-616 

maintenance   and    education   of,    from   proceeds    of    sale 

under  Revised  Price  Act .' 189 

remainder  interest,  sale  under  Revised  Price  Act 185 

"title  in,  relief  under  Revised  Price  Act 176 

Mismanagement  as  ground  for  removal  of  guardian  570 

of  fiduciary  as  ground  for  removal  566 

Money,  election  of  guardian  or  trustee  to  take  instead  of  real 

estate    499 

secured  by  proceeding  under  Revised  Price  Act,  applica- 
tion of   189 

Mortgages,  acknowledgment  of  under  Revised  Price  Act  . . .  195 
when  given  under  application  for  mortgage  of  real 

estate  to  pay  debts 440 

by  decedent 425 

devise  of  real  estate  subject  to  239 

execution  of  under  Revised  Price  Act  184 

for  payment  of  debts  where  fiduciary  is  mortgagee  447 

unpaid  purchase  money  of  sale  under  Revised  Price 

Act   194 

money,  application  of  under  Revised  Price  Act  189 

of  real  estate  to  pay  debts  43<>55 

on  decree  of  presumption  of  death   371 

refunding  of,  given  to  pay  debts 435 

to  fiduciary  under  Revised  Price  Act  202 


724  INDEX 

secure  unpaid  purchase  money  on  sale  to  pay  debts 439 

transfer  of  by-  foreign  fiduciary  592 

under  Revised  Price  Act,  appointment  of  master  for 191 

effect  of  removal,  etc.,  of  fiduciary,   196-201 

procedure  under  188-9 

where  real  estate  in  different  counties   203-4 

Mother  and  father,  rights  of,  under  Intestate  Act  316 

appointment  of  testamentary  guardian  by  225 

as  heir  of  illegitimate  under  Intestate  Act 334 

Murder  as  affecting  rights  under  Intestate  Act 347 

of  testator,  by  beneficiary,  effect  of   244 

N 

Natural  guardian,  payments  to   602 

Neglect  of  trust  as  ground  for  removal  of  trustee 572 

or  refusal  of  fiduciary  to  act  under  application  for  sale 

or  mortgage  to  pay  debts,  effect  of 441-6 

effect  of  under  Revised  Price  Act  196-201 

to  deliver  election,  effect  of   246 

Nephews  and  nieces,  rights  of  under  Intestate  Act 319-21 

Next  of  kin  entitled  to  estate  when  332 

rights  of,  under  Intestate  Act  322 

Nieces  and  nephews,  rights  of  under  Intestate  Act 319-21 

Non-residence  as  ground  for  removal  of  fiduciary   569 

Non-resident  executor,  bond  of  384 

fiduciaries    588-9 

actions  against 524 

minors,  appointment  of  guardian  of  603 

Non-residents,  not  affected  by  Intestate  Act 348 

notice  of  accounts  to  543 

wills  of  personal  estate  of  250 

Non-support  by  husband  bars  right  to  wife's  estate  under  In- 
testate Act 306 

Notes,  etc.,  to  be  included  in  inventory 394 

Notice  in  Orphans'  Court   109 

of  accounts  to  non-residents 543 

allowance  of  $5.000,  etc.,  under  Intestate  Act   298 

application  for  letters  on  estate  of  presumed  decedent  366-7 

sale  or  mortgage  of  real  estate  to  pay  debts  ....  438 
of   real   estate  to   pay   debts  where   land   in 

different  counties  449 

appointment   of   appraisers   of   real   estate   devised   at   a 

valuation   502 

claim  for  widow's  or  children's  exemption  406 

decree  of  presumption  of  death  369 

devise  or  bequest  to  corporation   465 

examination   of   commissioners   to  designate  curtilage  of 

building  devised   510 

exception  to  bond  of  executors  or  administrators   387 

filing  accounts  of  guardians  611 


INDEX  725 

trustees    547 

oral  depositions  outside  of  state . .  154 

petition  for  partition  6 

of   surviving   spouse   under   Intestate  Act   where  no 

known  heirs 341 

on  contract  by  decedent  for  sale  or  purchase  of  real 

estate    459 

to  discharge  real  estate  from  lien  of  legacies,  etc 481 

enforce  payment  of  legacy  charged  on  land 471 

relieve  real  estate  from  lien  of  debts  457 

private  sale  for  payment  of  debts  451 

in  partition  48 

proceedings  to  perpetuate  testimony  in  Orphans'  Court. .  156 

under  Revised  Price  Act  183 

public  sale  under  Revised  Price  Act 193 

removal  of  resident  fiduciary  on  appointment  of  foreign 

fiduciary 597 

sale,  etc.,  under  Revised  Price  Act  where  real  estate  in 

different  counties   204 

service  of,  outside  of  state  in  partition  7 

to  appraisers   401 

claimants  of  filing  account  541 

fiduciary  to  furnish  statement  of  investments 583 

guardians 616 

Nuncupative  wills   217-20 

effect  of,  to  revoke  legacy 242 

probate  of  265 

O 

Oath  of  appraisers   400 

of  real  estate  devised  at  a  valuation 503 

of  widow's  or  children's  exemption   445 

executors  and  administrators 380-1 

officer  of  corporation  fiduciary  381 

Register  of  Wills 255 

Objection  to  private  sale  in  partition  49 

of  real  estate  to  pay  debts 452 

under  Revised  Price  Act 206 

public  sales  not  affected  206 

Obligation  of  purchasers  of  real  estate    from    executors    or 

trustees 496 

to  see  to  application  of  purchase  money  in  sales  under 

Revised  Price  Act  209 

Officer,  oath  of,  fiduciary  corporations    381 

Opening  judgments  against  executors  or  administrators  of  pre- 
sumed decedents   375 

Operation  of  general  devise  or  bequest  229 

Oral  depositions  outside  of  state  154 

Orders  and  decrees  on  petition  of  surviving  spouse  under  In- 
testate Act  where  no  known  heirs  341 


726  INDEX 

enforcement  of,  by  superseding  fiduciary  578 

for  delivery  of  trust  property,  enforcement  of 141-2 

of  court,  letters  granted  under,  liability  on  bond  of  Regis- 
ter of  Wills  260 

on  executors  or  administrators  to  apply  for  stay  of  execu- 
tion    429 

on  petition  for  removal  of  fiduciary  575 

proceedings  in  Orphans'  Court  to  compel,  obedience  to  126-49 

Organization  of  corporation  to  carry  on  business  of  decedent  532-4 

Orphans'  Court  Act  66-166 

appeals  from 163-4 

by  fiduciary,  effect  of   561 

to  from  Register  of  Wills  284-6 

approval  by,  of  organization  of  corporation  to  carry  on 

business  of  decedent 533 

attachment  execution  in 130 

of  the  person  in  127, 132, 137-9 

attestation  of  process  in   1 1 1 

calling  in  other  judge  75-6 

certification  of  proceedings  on  issue  d.  v.  n 279-80 

citation  in   116-23 

clerk  and  assistants   87-91 

clerk's  fees  and  bill  of  costs 91 

Common  Pleas  judges  inj 77-8o 

control  of,  over  power  of  sale  of  real  estate  by  executor  493 

courtrooms  86 

decree,  reopening  144 

delivery  of  trust  property,  enforcement  of 141-2 

depositions,  etc.,  in  152-4 

oral,  outside  of  state 154 

discharge  from  attachment  for  contempt  139 

dissolution  of  attachment  in   138 

distribution  of  proceeds  of  sale,  issue  on  161-2 

dockets 89 

exclusive  jurisdiction  of,  over  contracts  of  decedent  for 

sale,  etc.,  of  real  estate  460 

over  collection  of  legacies   470 

fees  of  sheriff  in  150 

form  of  writ  of  sequestration  in 134 

hearing  by,  on  petition  for  letters  on  estate  of  presumed 

decedent 368 

injunctions  in   1 14 

issues  to  Common   Pleas   159-62 

judge  sitting  in  Common  Pleas  81-4 

judges    of    69,73,79 

judgments  of  filed  in  Common  Pleas   148 

jurisdiction  and  powers  of   92-106 

in  partition 2-3 

of,  to  appoint  trustees  587 


INDEX 


727 


authorize  sale  or  mortgage  of  real  estate  to  pay 

debts 430-2 

under  Revised  Price  Act   168-84 

lost  or  destroyed  records  in  156 

master  to  take  testimony  in   152 

notices  in   109 

organization  of  67-73 

Partition  Act   1-65 

perpetuation  of  testimony  in 156 

petition  to,  for  attachment  to  enforce  production  of  will  267 

to  compel   Register  of  Wills  to  furnish    copies    of 

bonds,  etc 274 

power  to  appoint  guardian  599 

compel  production  of  books  and  papers 155 

proceedings  in  74 

to  compel  appearance H5-25 

obedience  to  orders  and  decrees  126-149 

prevent  wasting  of  trust  property  140 

process  in  other  counties  133 

to  recover  fines,  etc 146 

production  of  papers  and  books  in   155 

publication  and  advertising  in  HO 

records  86 

custody  of 88 

return  days  of  process  112 

right  of  appeal  f rom  74 

rules  of  107 

satisfaction  out  of  estate  when  party  does  not  appear  in  143 

seal  85 

separate  where   68 

sequestration,  abatement  of  135 

fi.  fa.  in  145, 147 

filing  of,  in  Common  Pleas  136 

proceedings  in   128, 132, 134-8, 143-5 

subpoenas  in 151 

terms  of 108 

testimony  in   152-4 

in  proceedings  removed  from  Register  of  Wills 157-8 

translations    in    90 

vacation,  proceedings  in   113 

wasting  trust  property,  prevention  of  140 

witnesses  and  evidence 151-8 

writ  of  fi.  fa.  in  129 

test.  fi.  fa.  in 131 

Owelty  in  partition , 23-5 

rule  to  pay  non-resident 24 

Ownership  in  severalty,  etc.,  relief  under  Revised  Price  Act  181 


728  INDEX 


Papers  and  books,  production  of,  in  Orphans'  Court 155 

Parents,  marriage  of  as  legitimation  of  illegitimates 337 

not  to  be  appointed  guardians  602 

rights  of,  under  Intestate  Act   316 

Parol  contracts  by  decedent  for  purchase  or  sale  of  real  estate  463. 

Partial  vacancy,  trustee  to  fill  584 

Parties  in  petition  for  citation  for  partition  6 

Partition,  account  of  sales  in,  by  executors,  etc. 44 

Act,  Orphans'  Court  1-65 

allotment  of  shares,  method  of  17-20 

to  widow  in  21 

appeals  in  63 

application  of  purchase  money  in 38 

appointment  of  auditor  to  ascertain  liens  43 

commissioners  in  8 

trustee  to  make  sale  in 34 

auditor  to  ascertain  amount  due 57 

award  of  inquest  in 8 

bids  above  valuation 16 

bond  in 35 

charge  of  life  interests  in 28-40 

coal  and  timber  lands,  jurisdiction  of  Orphans'  Court  in  3 

combination  of  rules  in  31 

compensation  of  commissioners  or  jurors  in  9 

costs  and  counsel  fee  in  45-6 

discharge  of  liens  by  sale  in 36 

docket 61 

effect  of  decree   22 

fees  61 

index 62 

jurisdiction  and  procedure  when  land  in  different  counties  50-6 

of  Orphans'  Court  2-3, 100 

life  interest,  trustee  for  41 

making  of,  by  commissioners  or  inquest 10-13 

notice  to  parties 6 

owelty  in 23-5 

parties  to  petition 6 

payment  or  security  theref or 23 

petition  for 4 

citation  in  5 

private  sales  in 47-9 

protection  of  interests  of  persons  not  in  esse 60 

recognizance  by  purchaser  for  purchase  money   37 

in  general  57-9 

rental  value,  deduction  of  29 

rule  to  accept  or  refuse  purpart  in  15 

sales  in   30 

effect  of  removal,  etc.,  of  executor,  etc,  42 


INDEX 


729 


service  of  notice  outside  of  state  in  7 

trustee  for  unknown  parties   25 

valuation  of  decedent's  undivided  interest  in 14 

widow's  interest  in  26-7 

to  remain  with  purchaser  39 

Payment  into  court  on  petition  to  discharge  real  estate  from 

lien  of  legacy,  etc 482 

not  required  before  election  by  surviving  spouse 247 

of  debts  of  decedent,  order  of  415 

sale  or  mortgage  of  real  estate  for 43<>55 

legacy  charged  on  land,  proceedings  to  enforce  471-3 

liens  and  improvements  with  proceeds  of  sale  under  Re- 
vised Price  Act 190 

mortgage  under  Revised  Price  Act  188 

or  security  in  partition  23 

Pecuniary  legacies  chargeable  on  residuary  real  estate 238 

interest  on 467 

Penalties  for  neglect  of  witnesses  to  wills  to  appear  268 

Periodical  payments,  accrued,  bequests  of  223 

Perpetuation  of  testimony  in  Orphans'  Court   156 

Person  of  child,  custody  of  by  testamentary  guardian  224 

Personal  estate,  bequest  of,  under  nuncupative  will   217-20 

disposition  of,  by  non-resident   250 

Personalty   revocation   of  bequest  of    242 

Petition  by  surety  for  order  on  fiduciary  to  account 583 

for  ancillary  letters  on  estate  of  presumed  decedent 367 

appointment  of  guardian  599-604 

trustee  durante  absentia   613 

discharge  of  real  estate  from  legacy  or  annuity 474 

distribution  552 

leave  to  take  real  estate  at  appraisement 501 

letters  358 

on  estate  of  presumed  decedent  366 

partition  in  Orphans'  Court  4 

probate  of  will  or  later  will  of  presumed  decedent  . .  376 

reduction  of  bond  of  fiduciary   389 

removal  of  fiduciary  575 

sale  by  co-fiduciary  under  Revised  Price  Act  on  re- 
moval, etc.,  of  other  fiduciary   197 

for  distribution 32-3 

or  mortgage  to  pay  debts  on  removal  or  neglect 

of  fiduciary  to  act   441-3 

sale   under   Revised    Price   Act   on   removal,   etc.,    of 

fiduciary 198 

summary  removal  of  fiduciary 576 

widow's  and  children's  exemption   403-14 

ouD  of  real  estate  in  different  counties  413 

of  guardians  for  discharge  563 

of  surviving  spouse  under  Intestate  Act  where  no  known 

heirs    341 


730  INDEX 

on  contract  by  decedent  for  sale  or  purchase  of  real  estate  459 

to  designate  curtilage  of'  building  devised  508 

discharge  real  estate  from  lien  of  legacies,  etc.  ....  481-7 

where  charge  paid   413-4 

enforce  payment  of  legacy  charged  on  land 471 

to  have  guardian's  accounts  audited  .609-10 

Orphans'  Court  for  attachment  to  enforce  production 

of  will  267 

in  proceedings  to  set  aside  real  estate  in  different 
counties  claimed  as  allowance  under  Intestate 

Act   302 

to  compel  Register  of  Wills  to  furnish  copies  of 

bonds,  etc. 274 

to  relieve  real  estate  from  lien  of  debts 456 

to  reopen  decree  in  Orphans'  Court  144 

to  vacate  order  of  removal  of  fiduciary   576 

under  Revised  Price  Act  183 

where  real  estate  devised  to  executor  at  a  valuation  ....  506 

Place  of  service  of  citations  in  Orphans'  Court 1 19 

Pleadings  as  to  assets  512-22 

by  executor  or  administrator,  effect  of   521 

Pluries  citations  in  Orphans'  Court  122 

Posthumous  children,  rights  between,  under  Intestate  Act 344 

Powers  and  duties  of  administrators,  eta. 362 

of  administrators  d  b.  n. 363 

appointment,  effect  of  general  devise  or  bequest  on  229 

executors  as  to  real  estate 491-4 

foreign  fiduciaries  592 

non-resident   fiduciaries    588 

sale,  inadequate,  relief  under  Revised  Price  Act  ....  179 

to  authorize  private  sales  under  Revised  Price  Act 205 

Precept  for  issue  to  Common  Pleas,  form  of 160 

to  Common  Pleas  on  issue  d.  v.  n 278 

Preferred  debts  of  decedent  415 

President  Judge  of  Orphans'  Court  71-3,  79 

to  attest  process  in 

Presumed  decedents  366-80 

Presumption  of  death,  decree  of 369-71 

Price  Act,  Revised  167-212 

Private  sales  of  real  estate  by  executor  492 

to  pay  debts 450-2 

in  partition   47-9 

under  Revised  Price  Act 205-6 

not  to  discharge  liens,  etc,   208 

Pro  tanto  revocation  of  wills  by  marriage,  etc, 243 

Probate  of  copies  of  wills 266 

nuncupative  wills  265 

wills,  before  what  Register 263 

conclusiveness    of    276 

effect  of  276-7 


INDEX  731 

of  presumed  decedent 378 

time  limit  for 277 

Procedure  for  widow's  or  children's   exemption  out  of  real 

estate  in  different  counties  413 

in  sale  of  coal  leases  623-4 

to  compel  filing  inventory  and  appraisement 393 

enforce  lien  of  decedent's  debts   418-21 

payment  of  legacy  charged  on  land 471-3 

organize  corporation  to  carry  on  business  of  decedent         533 
under  Intestate  Act  where  surviving  spouse  but  no  known 

heirs   341 

where  real  estate  devised  at  a  valuation  501-7 

will  or  later  will  of  presumed  decedent  is  produced  376 

Proceedings  by  surety  for  discharge  582 

for  sale  or  mortgage  of  real  estate  to  pay  debts  where 

fiduciary  is  purchaser  or  mortgagee   447 

in  Orphans'  Court  in  default  of  appearance 125 

to  compel  obedience  to  orders,  etc 126-49 

to  relieve  real  estate  from  lien  of  debts  456-8 

under  Revised  Price  Act  183 

where   allowance  of  $5,000,   etc.,  under  Intestate  Act  is 

claimed  out  of  real  estate  299-300 

Proceeds  of  sale,  issue  on,  from  Orphans'  Court  to  Common 

Pleas    161-2 

Process,  attestation  of,  in  Orphans'  Court in 

of  Orphans'  Court  in  other  counties  133 

return  days  of,  in  Orphans'  Court 112 

to  recover  fines,  forfeitures  and  amercements  146 

Production  of  books  and  papers  in  Orphans'  Court 155 

Proof  of  service  of  citation  in  Orphans'  Court 124 

Property  included  in  inventory  and  appraisement  394-9 

passing  under  Intestate  Act   293 

wills    214 

removal  of,  by  foreign  fiduciary 596-7 

selection  of,  for  exemption  of  minor  children  408 

subject  to  widow's  or  children's  exemption 403 

Public  sales,  objections  to,  not  affected  206 

under  Revised  Price  Act,  effect  of  208 

Publication  in  Orphans'  Court no 

of  citation  in  Orphans'  Court   123 

Purchase  money,  application  of,  in  partition   38 

under   Revised   Price   Act    189 

sale  by  executor 496 

recognizance   for,   in  partition    37 

unpaid,  mortgage  for,  in  sale  under  Revised  Price  Act  ...  194 

of  real  estate,  contract  of  decedent  for  459-64 

or  mortgage  by  fiduciary   202 

Purchaser,   liability  for  widow's  interest  in  partition    39 

of,  under  sale  for  payment  of  debts  455 

of  real  estate  from  executors,  etc.,  obligation!  of 496 


732 


INDEX 


Rate  of  interest  to  be  paid  by  fiduciary  537 

Real  estate,  after  acquired,  to  pass  by  general  devise  in  will  228 

allowance  of  $5,ooo,  etc.,  out  of,  under  Intestate  Act 299-300 

claim  of  exemption  out  of,  by  widow  or  children 410-11,413-4 

contracts  of  decedent  for  sale  or  purchase  of 459-64 

devise  of  230 

subject  to  mortgage  239 

devised  at  a  valuation,  procedure  5OI-7 

to  executor .' 5°6 

discharge  of,  from  lien  of  legacies,  etc.  481-90 

effect  of  decree  of  presumption  of  death  on  371 

election  by  guardian  or  trustee  to  take  in  lieu  of  proceeds  498 
in  different  counties,  application  for  sale  or  mortgage  of, 

to  pay  debts 448-9 

procedure  under  widow's  or  children's  claim  of  ex- 
emption     413 

under  Revised  Price  Act  203-4 

where  claimed  as  allowance  of    $5,ooo,    etc.,    under 

Intestate  Act 302 

investment  in  by  fiduciaries    529 

lease  of  by  testamentary  trustee  or  guardian  497 

obligation  of  purchaser  of,  from  executors,  etc.  496 

of  decedent,  sale  or  mortgage  of,  to  pay  debts 430-55 

powers    of   executors   as   to 491-4 

purchase  or  mortgage  of,  by  fiduciary 202 

surviving,    acting    or    remaining    executors    or    adminis- 
trators c.  t  a.  as  to   494 

procedure  to  relieve  from  lien  of  debts  456-8 

residuary,  charge  of  pecuniary  legacy  on  238 

retention  of  quality  as,  of  proceeds  of  sale,  etc.,  under 

Revised  Price  Act 189 

revocation  of  devise  of  241 

sale  of  by  foreign  fiduciary 593 

statement  of,  on  application  for  sale  or  mortgage  to  pay 

debts   434 

Recognizance,  discharge  of  real  estate  from  lien  of  481-90 

for  purchase  money  in  partition  37 

in   partition    57-9 

Recording  and  registering  decree  of  widow's  or  children's  ex- 
emption     414 

report   of   commissioners    to    designate   curtilage    of 

building  devised   510 

bond  of  register  of  wills   257 

certified  copy  of  decree  of  allowance  of  $5,000,  etc.,  under 

Intestate   Act    303 

decree  of  presumption  of  death  371 

on  petition  of  surviving  spouse  under  Intestate  Act 

where  no  known  heirs 341 

to  discharge  real  estate  from  lien  of  legacies,  etc.,  482 

to  take  real  estate  at  appraisement  505 


INDEX  733 

deeds  and  mortgages  under  Revised  Price  Act  where  land 

in  different  counties    204 

elections    249 

of  guardians  or  trustees  498 

inventory  and  appraisement  273 

wills    270 

in  foreign  language  271 

Records  of  Orphans'  Court  86, 88-90 

lost  or  destroyed  156 

Recovery  of  widow's  interest  from  purchaser  in  partition...  39 

Reduction  of  bonds  of  fiduciary  389 

fund  set  apart  out  of  residue  to  pay  annuities,  etc 479 

Refunding  bonds 55Q-60 

on  distribution  of  estate  of  presumed  decedent 373  • 

requirement  of   553 

of  mortgage  given  to  pay  debts 435 

Refusal  of  fiduciary  to  act  under  application  to  sell  or  mort- 
gage real  estate  to  pay  debts 441-6 

or  neglect  to  deliver  election,  effect  of  246 

to  probate  will,  conclusiveness  of   276-7 

satisfy  recognizance  in  partition,  remedy  for 49 

Register  of  Wills  Act  254-91 

appeals    from    105,  276,  284-6 

as  clerk  of  the  Orphans'  Court 87-91 

before  what,  wills  should  be  probated 263 

bill  of  costs  287 

bond    256-60 

citation  by,  to  parties  interested  in  estate  of  presumed  de- 
cedent      377 

collection  of  costs  by  288 

deputy,  appointment  and  duties   261 

duty  of,  as  to  accounts  542 

to  furnish  copies  of  bond,  etc 274 

fee  for  Commonwealth  on  issue  of  letters  by 289 

jurisdiction    262-355 

liability  of,  for  granting  letters  without  bond 385 

oath  of  office  255 

power  to  issue  commission  to  take  depositions   subpoena 

witnesses     268 

precept  to  Common  Pleas  on  issue  d.  v.  n 278 

revocation  of  letters  by   264 

testimony  in  proceedings  removed  from   157-8 

Registry  of  decree  to  take  real  estate  at  appraisement 505 

Rehearing  of  accounts  of  guardians 614 

Relief  granted  under  Revised  Price  Act 168-84 

Religious  and  charitable  uses,  bequests  for 222 

association,  title  in,  relief  under  Revised  Price  Act 176 

preferment  of  guardians  600 

Remainder  interests,  sale  of  under  Revised  Price  Act 185 

vested  in  husband,  widow's  share  in,  under  Intestate  Act..  304 


734 


INDEX 


wife,  husband's  share  in,  under  Intestate  Act 305 

Remainders  barred  by  decree  under  Revised  Price  Act 186 

Remedy  for  refusing  to  satisfy  recognizance  in  partition 59 

Removal  from  state  as  ground  for  removal  of  fiduciary 569 

of  executors,  etc.,  effect  of,  on  sale  in  partition 42 

fiduciaries    565-78 

effect  of,  on  sale  under  Revised  Price  Act 201 

for  failure  to  give  security  580 

mismanagement,  on  petition  of  surety  583 

property  by  foreign  fiduciary   596-7 

resident  fiduciary  on  appointment  of  foreign  fiduciary  597 
or  incapacity  of  fiduciary,  effect  on  application  for  sale  or 

mortgage  of  real  estate  to  pay  debts  441-446 

Rent-charge,  suit  for,  by  executor  or  administrator 515 

Rental  value,  deduction  of,  in  partition 29 

Rents  and  royalties,  mining,  under  Revised  Price  Act 172 

as  assets  for  payment  of  decedent's  debts  417 

bequests   of    223 

of  property  set  apart  under  Intestate  Act  as  allowance  of 

$5,000    301 

claimed  under  widow's  or  children's  exemption  412 

to  be  included  in  inventory  and  appraisement 396-7 

Re-opening  decrees  in  Orphans'  Court 144 

Repealing  clause   in   Fiduciaries   Act   623 

Intestate    Act    352 

Orphans'   Court  Act    166 

Orphans'  Court  Partition  Act  65 

Register  of  Wills  Act  291 

Revised  Price  Act   212 

Wills  Act  253 

Report  of  commissioners  to  designate  curtilage  of  building  de- 
vised    510 

Representation,  issue  of  descendants  of  deceased  grandparents 

take  by  under  Intestate  Act  331 

under  Intestate  Act,  limits  of 323 

issue  taking  by  under  Intestate  Act  315 

Requisites  of  election  to  take  under  or  against  will  246 

Residence  of  decedent  as  determining  probate  of  will 263 

Resident  co-trustee  of  non-resident  fiduciary  589 

fiduciary,  removal  of,  on  appointment  of  foreign  fiduciary  597 

Residuary  estate,  discharge  of,  from  annuity  or  legacy 474-80 

real  estate,  charge  of  pecuniary  legacy  on 238 

Residue,  lapsed  and  void  legacies,  and  devises  fall  into  when..  235 
Retroactive  force  of  provisions  with  reference  to  Hen  of  de- 
cedent's debts   420 

Return  and  confirmation  of  appraisement  of  real  estate  de- 
vised at  a  valuation  504 

sale  or  mortgage  to  pay  debts 453 

under  Revised  Price  Act   207 

days  in  Orphans'  Court 1 12 


INDEX  735 

of  appraisers  401 

service  of  citation  in  Orphans'  Court 121 

Review  of  accounts,  etc 551 

Revised  Price  Act    167-212 

Revival  of  judgments  against  executor  or  administrator  of 

judgment  creditor   526 

by  foreign  fiduciary  594 

which  were  liens  at  death  of  decedent  424 

not  liens  at  death  of  decedent 423 

Revocation  of  letters   264 

because  of  failure  to  give  additional  bond 387 

effect  on  sale  or  mortgage  of  real  estate  to  pay  debts  ....  445 

on  sale,  etc.,  under  Revised   Price  Act    196-201 

of  administration  on  estate  of  presumed  decedent 378 

on  estate  of  presumed  decedent 374 

of   wills   241-3 

Right  of  married  woman  to  bequeath  or  devise  property  held 

under  sole  and  separate  use  trust 245 

of  surviving  spouse  to  elect  to  take  against  will 245 

of  way,  etc.,  under  Revised  Price  Act  173 

to  letters  of  administration    357 

Roads,  etc.,  laying  out,  etc.,  under  Revised  Price  Act 174 

Rule  as  to  blood  of  first  purchaser  abrogated  332 

to  accept  or  refuse  or  show  cause,  in  partition,  combined.  31 

purport  in  partition  15 

pay  owelty  in  partition   24 

show  cause  why  sale  in  partition  should  not  be  made  30 

suit  should  not  abate  522 

Rules  of   Orphans'  Court    107 

as  to  auditor    548 

S 

Sales  and  mortgages  of  real  estate  to  pay  decedent's  debts  . .  430-55 

under  Revised  Price  Act,  appointment  of  master  for  191 

by  sheriff  against  decedent,  distributon  of  proceeds 427 

execution  of,  under  Revised  Price  Act  184 

for   distribution    32-3 

in  partition,  account  of   44 

appointment  of  trustee  for 34 

discharge  of  liens  by  36 

effect  of  removal,  etc.,  of  executor,  etc 42 

rule  to  show  cause  30 

of  real  estate  by  executor  491-4 

foreign   fiduciary   593 

contract  of  decedent  for   459-64 

effect  of  appeal  on  163 

for  payment  of  debts,  jurisdiction  of  Orphans' Court  in  98 

to  pay  widow's  or  children's  exemption   410 

securities   distributed  to   fiduciary   in   kind 557 


736  INDEX 

proceeds  of,  issue  from  Orphans'  Court  to  Common  Pleas 

on 161-2 

to  fiduciary,  under  Revised  Price  Act 202 

under  petition  to  enforce  payment  of  legacy  charged  on 

land   471 

Revised  Price  Act,  advertisement  of  notice  of  193 

confirmation   of    207 

effect  of  removal,  etc.,  of  fiduciary 196-201 

on  obligation  to  see  to  application  of  purchase 

money    209 

on  liens  208 

mortgage  for  unpaid  purchase  money   194 

power  of  co-fiduciary  on  removal  of  the  other. . .  197 

where  real  estate  in  different  counties 203-4 

Satisfaction  of  judgment  in  Common  Pleas  on  transcript  from 

Orphans'    Court    149, 562 

recognizance  in  partition  58-9 

out  of  estate  when  party  does  not  appear 143 

Scire  facias  on  judgment  sur  decedent's  debts 422 

sur  judgments   against  decedent    426 

to  revive  judgments  against  executor,  etc.,  of  judgment 

creditor    526 

not  liens  at  death  of  decedent 423 

which  were  liens  at  death  of  decedent 424 

substituted  executor  or  administrator   518-9 

Scope  of  power  of  executor  to  sell  real  estate 491 

Seal  of  Orphans'  Court 85 

Securities  unconverted  distributable  in  kind   556-7 

transfer  of,  by  foreign  fiduciary 592 

Security  by  foreign  fiduciary  on  removal  of  property  596 

one  entitled  to  income,  etc 469 

trustee  appointed  to  fill  vacancy  584-7 

entry  of,  effect  in  sale  under  Revised  Price  Act 187 

for  satisfaction  out  of  estate,  party  not  appearing 143 

injunction  in  Orphans'  Court  114 

sheriff  in  taking  possession  to  prevent  waste 140 

or  payment  in  partiton   23 

required  on  objection  to  private  sale  under  Revised  Price 

Act    206 

on  sale  or  mortgage  to  fiduciary  under  Revised  Price 

Act   202 

under  Revised  Price  Act  on  removal,  etc.,  of  fiduci- 
ary    196-201 

requirement  of,  from  foreign  fiduciary   579-82 

to  dissolve  attachment  in  Orphans'  Court 138 

Service  of  attachment  for  inquest  in  partition  5 

citation  in  Orphans'  Court  117-120,124 

notice  of  proceeding  under  Revised  Price  Act 183 

process  in  partition  where  land  in  different  counties. . .  52 

<5n  fiduciary  in  another  county  524 


INDEX  737 

rule  to  accept  or  refuse  in  partition 15 

show  cause,  sale  in  partition  30 

sci.  fa.  on  executor  or  administrator  519 

on  non-resident,  of  rule  to  pay  owelty  in  partition 24 

outside  of  state  in  partition  proceedings  7 

Separate  trustee,  when  appointed  586 

Sequestration,  abatement  of  in  Orphans'  Court  135 

in  Orphans'  Court  ' 128, 132, 134-8, 143-5 

fi.    fa 145,147 

Setting  aside  private  sale  in  partition  49 

Sheriff,  fees  of,  for  serving  writs  of  Orphans'  Court 150 

inquest  of,  in  partition  where  land  in  different  countries  50 

sale  against  decedent,  distribution  of  proceeds  of 427 

Short  title  of  Fiduciaries  Act  622 

Intestate  Act  350 

Orphans'  Court  Act  165 

Orphans'  Court  Partition  Act  64 

Register  of  Wills  Act  290 

Revised  Price  Act 211 

Wills  Act  251 

Sickness  as  ground  for  removal  of  fiduciary 568 

Signature  to  wills  215-6 

Sisters  and  brothers  as  heirs  of  illegitimates  under  Intestate 

Act   335 

legacies  and  devises  to,  not  to  lapse  when 234 

rights  of  under  Intestate  Act 318-21 

Soldiers,  wills  of  221 

Sole  and  separate  use  trust,  right  of  married  woman  to  devise 

or  bequeath  property  held  under  245 

Specific  execution  of  contract  by  decedent  to  sell  real  estate, 

jurisdiction  of  Orphans'  Court  in  101 

Spendthrift  trusts,  liability  of  income  from  240 

Spouse  and  children  or  descendants,  rights  of 295 

no  children  but  collaterals,  rights  of  296-303 

one   child,   rights   of   under    Intestate   Act 294 

right  to  take  against  will  245 

rights  of  under  Intestate  Act  where  no  known  heirs 340-1 

Squaring  of  lines,  etc.,  under  Revised  Price  Act 171 

Statement  of  investments   by   fiduciary    553 

Statute  of  limitations  against  debts  due  estate  523 

Stay  of  execution  against  decedent  428-9 

Stock  of  corporation  organized  to  carry  on  business  of  de- 
cedent      534 

transfer  of,  by  foreign  fiduciary  592 

voting  of,  by  fiduciary 535 

Streets,  etc.,  laying  out,  etc.,  under  Revised  Price  Act 174 

Subdivision  of  premises  under  Revised  Price  Act 174 

Subpoena  of  witnesses  to  wills 268 

Subpoenas  in  Orphans'  Court ,,,,,,..,,,. , , , ,  151 

47 


738  INDEX 

Substitution  in  actions  of  persons  supposed  to  be  dead 375 

or  executors  and  administrators  512-22 

Successors  to  trustees,  appointment  of  584-7 

Suits  against  non-resident  fiduciaries  524 

on  bonds  of  fiduciaries   338 

Summary  removal  of  fiduciaries 576 

Superior  Court,  appeals  to,  from  Orphans'  Court 164 

Support  of  minor,  allowance  for  607 

Supposed   decedents    366-80 

Supreme  Court,  appeals  to,  from  Orphans'  Court 164 

Surety  of  fiduciary,  discharge  of  563-4 

proceedings  for  discharge  of 582 

right  of,  to  demand  statement  of  investments  583 

service  of  citation  on.  in  Orphans'  Court 120 

Surplus  income  from  estate  set  apart  from  residue  to  pay 

annuity,  etc.    478 

Survival  of  actions  512-22 

Surviving  issue  to  take  to  avoid  lapse  of  legacy  or  devise 233 

spouse  and  children  or  descendants,  rights  of 295 

no  children,  but  collaterals,  rights 296-303 

one  child,  rights  of  under  Intestate  Act 294 

right  of  to  take  against  will 245 

rights  of,  where  no  known  heirs,  Intestate  Act 340-1 

T 

Tax  on  proceedings  before  Register  of  Wills 287 

Tenant  for  life,  bequests  of  rents,  etc.,  by 223 

Terms  of  Orphans'  Court 108 

sale  for  payment  of  debts 439 

Testamentary,  granting  letters 355-64 

guardians    224-6 

effect  on  by  provisions  of  Fiduciaries  Act 599-616 

trust,  vacancy  in   584-7 

trustees  and  guardians,  lease  of  real  estate  by 497 

Testatum  fi.  fa.  in  Orphans'  Court 131 

Testimony,  commissioners  to  take,  by  Register  of  Wills 269 

in  Orphans'  Court   152-4 

perpetuation   of    156 

proceedings  from  Register  of  Wills I57-8 

Timber  and  coal  lands,  partition  of,  jurisdiction  of  Orphans' 

Court   3 

Time  for  appeal  from  Register  of  Wills  285 

distribution    552 

filing  inventory  and  appraisement  392 

proving    nuncupative   wills    220 

limitation  on  granting  letters   356 

of  payment  of  decedent's  debts  416 

to  take  effect,  construction  of  wills  as  to 227 

when  Intestate  Act  takes  effect   351 

Wills  Act  takes  effect  , 252 


INDEX  739 

Title  acquired  in  sales,  etc.,  under  Revised  Price  Act,  effect  of 

appeals  on   210 

disposition  of,  jurisdiction  of  Orphans'  Court  in 99 

in  estate  tail,  etc.,  relief  under  Revised  Price  Act 177 

of  acts,  short,  Fiduciaries  Act  622 

Intestate  Act  35° 

Orphans'  Court  Act  165 

Orphans'  Court  Partition  Act 64 

Register  of  Wills  Act  290 

Revised  Price  Act  211 

Wills  Act  251 

subject  of  relief  under  Revised  Price  Act  175-82 

to  curtilage  of  building  devised  5IQ 

real  estate  taken  as  widow's  or  children's  exemption. .  411 

under  Intestate  Act  as  allowance  of  $5,000 300 

transferred  by  decree  under  Revised  Price  Act 187 

under  decree  of  presumption  of  death  371 

Revised  Price  Act  not  affected  by  removal,  etc.,  of 

fiduciary    20O 

Transcripts  in  Common  Pleas,  filing  from  Orphans'  Court  ..  148 

of  balance  due  by  fiduciary 561-2 

Transfer  of  securities  by  foreign  fiduciary 592 

Translations  in  Orphans'  Court   90 

of  wills  in  foreign  language 271 

Triennial  accounts  of  guardians   608 

trustees    546 

Trust  affecting  title,  relief  under  Revised  Price  Act 176 

inadequate  powers,  relief  under  Revised  Price  Act 181 

management  of,  power  of  fiduciary  to  delegate  discretion  495 

neglect  or  abuse  of,  as  ground  for  removal  of  trustee  ....  572 

property,  enforcement  of  delivery  of  141-2 

wasting  prevention  of   140 

procedure   on    140 

spendthrift,  liability  of  income  from 240 

Trustees  accounts  of   ., 539-47 

sale  in  partition  by  44 

appointment  of  to  fill  vacancy  584-7 

commission  of,  when  also  executor  538 

compensation  of,  on  partition  46 

durante  absentia,  jurisdiction  of  Orphans'   Court  in  ap- 
pointment      95 

powers  and  duties   617-19 

effect  of  removal,  etc.,  on  sales  in  partition 42 

election  by   498-500 

for  distribution  of  estate  of  presumed  decedent 373 

life  interest  in  partition  41 

tenant,  appointment  of 469 

sale  in  partition,  appointment  of 34 

unknown  parties  in  partition  25 

foreign    590-8 


740  INDEX 

awards   to    598 

in  partition  to  protect  persons  not  in  esse 60 

inadequate  powers,  relief  under  Revised  Price  Act 181 

jurisdiction  of  Orphans'  Court  in  appointment,  etc 94 

not  to  be  appointed  guardian  601 

purchasers  of  real  estate  from,  obligations  of 496 

removal,  etc.,  effect  of  on  sale  under  Revised  Price  Act.  196-201 

of  for  neglect  or  abuse  of  trust,  etc 565-78 

separate,  when  appointed   586 

testamentary,  leases  of  real  estate  by 497 

to  make  sale  of  minor's  interest  under  Revised  Price  Act.  185 

U 

Unconverted  securities,  distribution  of  in  kind   556-7 

Undivided  interest  of  decedent  in  partition,  valuation  of 14 

Unincorporated    associations,    title    in,    relief    under    Revised 

Price  Act  176 

United  States  service,  minors  in,  appointment  of  guardians  for  604 

Unknown  parties  in  partition,  trustee  for  25 

V 

Vacancy,  appointment  of  trustee  to  fill 584-9 

Vacating  streets,  etc.,  under  Revised  Price  Act 174 

Vacation  of  decrees  of  presumption  of  death  370, 374 

proceedings  in  Orphans'  Court  in  113 

Validation  of  previous  decrees  where  real  estate  devised  at 

appraisement  or  valuation   507 

elections  by  guardians  or  trustees  500 

Valuation  of  decedent's  undivided  interest  in  partition 14 

real  estate  devised  to  executor  at  506 

Void  or  lapsed  legacies  or  devises  233-5 

Voting  of  stock  in  corporations  by  fiduciaries 535 

W 

Wages  distribution  of,   by  employer 558 

Waste  or  mismanagement  by  fiduciary,  as  ground  for  removal  566 

Wasting  of  trust  property,  procedure  in 140 

Weak-minded  persons,  title  in,  relief  under  Revised  Price  Act  176 

Widow,  allotment  to,  in  partition  21 

and  children's  exemption   403-14 

exemption  not  disturbed  by  allowance  of  $5,000,  etc 296 

interest  in  partition 26-7 

payment  of,  out  of  purchase  money,  in  partition  ....  39 

rights  under  Intestate  Act  barred  by  desertion 307 

share  under  Intestate  Act  in  lieu  of  dower 304 

Wife  and  children,  maintenance  of,  from  spendthrift  trust  . . .  240 

Wills   Act   213-253 

when  to  take  effect 252 

Wills  certified  copies  of  270 

citation  to  produce  267 


INDEX  741 

construction  of  as  to  time  to  take  effect 227 

copies  of,  probate  of  266 

discovery  of,  effect  on  letters  already  granted 365 

election  to  take  under  or  against 245-9 

effect  of,  on  administration  of  estate  of  presumed  decedent  376 

in  foreign  language   271-2 

form  and  execution  of  215-6 

nuncupative  217-20 

effect  of,  to  revoke  legacy 242 

probate  of 264 

of  mariners  and  soldiers   221 

personal  estate  by  non-residents 250 

presumed  decedents,  probate  of 378 

probate  of,  conclusiveness  of  276-7 

time  limit  for  277 

probated  in  other  counties,  filing  copy  of 275 

property  passing  under   214 

recording  and  filing  270 

revocation  of  241-3 

pro  tanto,  by  marriage,  etc 243 

to  be  probated  before  what  Register 263 

who  may  make  214 

witnesses  to,  depositions  of   269 

subpoena  and  attachment  of  268 

Witnesses  and  evidence  in  Orphans'  Court 151-8 

depositions  of  aged,  infirm  and  going  in  Orphans'  Court. .  153 

to  nuncupative  wills  219 

wills    215-6 

containing  bequests  for  religious,  etc.,  uses   222 

depositions  of   269 

subpoena  and  attachment  of  268 

Writ  of  fi.  fa.  in  Orphans'  Court 129 

sequestration    145, 147 

possession  to  prevent  wasting  trust  property 140 

testatum  fi.  fa.  in  Orphans'  Court  131 

Writing,  reduction  of  nuncupative  will  to   220 


